Brian J. MacDonough quoted in Massachusetts Lawyers Weekly on U.S District Court decision involving supervisor liability under Title VII and Mass. Chapter 151B

March 28, 2022

Brian J. MacDonough, chair of the firm’s Employment Department, was quoted in Massachusetts Lawyers Weekly on the recent U.S. District Court decision in Caruso v. Delta Airlines, Inc., a Title VII sex discrimination case involving the alleged sexual assault of a flight attendant. In granting the airline’s motion for summary judgment, Judge National M. Gorton found that the plaintiff’s assailant, the flight crew’s first officer, was not her “supervisor” for purposes of imposing supervisor liability under Title VII and Mass. Chapter 151B. In addition, the court concluded the plaintiff could not show that the first officer’s misconduct was causally related to any negligence on the part of Delta.

Read the full article from Massachusetts Lawyers Weekly here (subscriber content).

From the article:

But Boston attorney Brian J. MacDonough said he was troubled by Gorton’s analysis on the issue of supervisor status and the “narrow” approach taken at the summary judgment stage.

MacDonough, who represents individual employees and executives in employment disputes, said Gorton’s decision highlights the concerns expressed by Supreme Court Justice Ruth Bader Ginsburg in Vance v. Ball State University, a 2013 case that also addressed supervisor liability for workplace harassment.

In Vance, Ginsburg criticized the court’s recognition of the “tangible employment action” standard, arguing instead that the test for supervisory status should be whether the employee accused of misconduct had “the authority to direct an employee’s daily activities.”

“In [Caruso], the court kind of acknowledges that this issue is generally factual in nature and should generally be determined by a fact finder, but what I find troubling is that there was not a ton of analysis regarding supervisor status,” MacDonough said. “The first officer [in an aircraft] is second in command. It’s quasi-military.”

MacDonough added that state courts have not defined supervisor liability under Chapter 151B as clearly as the federal courts have in addressing the issue under Title VII.

“If this was a state claim in state court, the result might have been different,” MacDonough said.