In a recent Order issued by the Superior Court in the case of Peters v. Boston Properties, Inc., et al., Suffolk Superior Court Civil Action No. 2084CV02447, the court denied the Defendants’ Motion for Judgment on the Pleadings, holding that a person aggrieved by discrimination in a place of public accommodation is not required to file a charge with the Massachusetts Commission Against Discrimination (“MCAD”) and exhaust their administrative remedies before filing suit.

For the time being, this case provides persuasive authority to allow such claims to be brought in Superior Court without first exhausting administrative remedies.

The Commonwealth’s public accommodations law, codified in G.L. c. 272, § 98, prohibits discrimination based on “race, color, religious creed, national origin, sex, gender identity, [and] sexual orientation . . . in any place of public accommodation.” General Laws c. 272, § 98A defines a place of public accommodation as “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.” The Massachusetts Legislature has charged the MCAD with investigating and prosecuting complaints of discrimination through the procedures set forth in G.L. c. 151B. Those procedures instruct a person aggrieved by a violation of the Commonwealth’s discrimination law to file a complaint with the MCAD.

In Peters, the Plaintiff’s claims stem from a December 2017 incident that occurred in the pedestrian mall area of the Prudential Center in Boston, Massachusetts, when several security officers pinned the Plaintiff face down on the floor for at least twenty-three (23) minutes. Subsequent to the incident, the Plaintiff filed a verified Charge of Discrimination (“Charge”) with the MCAD, naming, among other Defendants, “John/Jane Doe Allied Universal Security Officers,” and the MCAD issued a finding of probable cause. The Plaintiff subsequently withdrew her Charge and filed suit in Suffolk Superior Court. In their Motion for Judgment on the Pleadings in the Superior Court, six of the named defendants argued that the Plaintiff’s claim for discrimination must be dismissed because they were not named in the Plaintiff’s MCAD Charge, and therefore, the Plaintiff failed to exhaust her administrative remedies, barring the Plaintiff’s claims. The court disagreed.

The Superior Court analyzed the exclusivity provision of G.L. c. 151B, § 9, which provides that a charge of discrimination with the MCAD is the exclusive remedy but, as the court pointed out, only as to the unlawful acts set forth in § 4. The court noted that the acts declared unlawful under § 4 that are subject to § 9’s exclusivity provision do not include discrimination in public accommodations. Citing CapoDiCasa v. Ware, No. 17-30079-MGM, 2018 WL 3966303, at *3 (D. Mass. Aug. 17, 2018), the court agreed with the Plaintiff that the administrative proceedings set out in § 5, which require an aggrieved person to file a complaint with the MCAD, apply to claims brought under § 4, but that said procedures are not exclusive for violations of the public accommodations law. As such, the court held that the Plaintiff’s claims for violations of the public accommodations laws are not barred.

While this Superior Court decision expressly holds that public accommodations claims may be brought in Superior Court and are not exclusive to the MCAD, this issue may still be brought up on appeal. For the time being, this case provides persuasive authority to allow such claims to be brought in Superior Court without first exhausting administrative remedies. Plaintiffs may prefer to proceed before the MCAD as it is typically a less expensive and less complicated administrative process than that of Superior Court.