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Because direct proof of discrimination is rarely available, employees can prove discrimination by relying on evidence that their employers gave a false reason for the job action.

The Massachusetts Supreme Judicial Court recently issued important guidance on this issue in Bulwer v. Mount Auburn Hospital.  The plaintiff was a black doctor from Belize who received several favorable evaluations and some unfavorable evaluations.  Some of the unfavorable evaluations had tinges of racial code words.  The Court overturned the lower court’s grant of summary judgment against the employee.  The lower court had accepted the defendant’s argument that the plaintiff must present evidence that the hospital’s reason for firing the doctor was a pretext concealing a discriminatory purpose.

The SJC ruled that the lower court’s analysis overstates the plaintiff’s burden of proof.  A case should proceed to trial if there is evidence that one or more of the employer’s reasons for termination is false. The falsity infers that the employer is covering up a discriminatory intent, motive, or state of mind. Although the hospital insisted the doctor’s evaluations were sufficient reason for discharge, there was evidence that white doctors who received similar criticisms suffered no adverse job consequences, or did not receive disciplinary action until months or years after the complaints were made.  Evidence of the hospital’s refusal to discipline employees who posted white supremacist literature in a break room also served as compelling evidence of illegal discrimination.

The SJC noted that a jury would be allowed to interpret comments by the plaintiff’s evaluators and supervisors as reflecting stereotypical thinking.  Standing alone, the comments would not be sufficient to prove discrimination.  But, when considered with evidence of disparate or unfair treatment in the evaluation process, they lend support to such a finding.  The SJC cited examples of comments which would allow a jury to find that they reflected a conscious or subconscious bias that the plaintiff, as a black man and a foreigner, did “not know his place.”

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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