This new ruling has received a great deal of recent publicity. Much of this publicity, however, has not painted the decision with complete accuracy. While employers should welcome this decision and the new right it grants, the ruling is not a "magic wand," as some commentators have suggested.
Under Lavelle, an employer is not entitled to a jury trial in lieu of an MCAD proceeding, as is a complainant's right. Instead, an employer is entitled to a jury trial under Chapter 151B only after the MCAD has rendered a decision granting damages and/or other relief to a complainant. True, this is an advantaged new weapon for employers; before Lavelle, a respondent's sole remedy for an adverse finding by the MCAD was to appeal to the Superior Court for review of the agency's decision, which review is quite limited by statute. Practically speaking, however, under Lavelle this option will only become available to an employer at the conclusion of the lengthy MCAD process, and will involve considerable extra time and expenses while the matter is essentially re-litigated before the Superior Court.
On the positive side, an employer will have a new avenue of "appeal" should the MCAD require it to pay substantial damages to a complainant. Also, the spectre of this expensive and extended process may encourage complainants to settle early in the litigation. On the negative side, in addition to the extra litigation costs and time involved, an employer's exercise of this new right, may expose it to punitive damages: a Superior Court jury may grant these damages, which are not available to an MCAD complainant (although the MCAD may grant substantial and difficult-to quantify "emotional distress" damages).
After Lavelle, several procedural issues remain open. In particular, it is not clear if a complainant in a post-MCAD jury trial under Chapter 151B will be permitted to inform the jury of the MCAD's resolution of the case. If so, how much weight the jury should give to the MCAD's determination will also need to be resolved. Finally, it is not clear whether any new Superior Court case will proceed on a "parallel" track with an appeal to Superior Court from an MCAD ruling. We expect that the MCAD will work together with the state legislature and the bar to formulate guidance. Also, we expect the courts to develop procedures to help resolve these outstanding issues.
In the end, the decision to assert the right to jury trial will be made on an individual, case-by-case analysis. Employers and their counsel must review the facts and procedural history of the particular case, assess the stakes involved and weigh the likelihood of success against the additional costs and risks associated with continuing the litigation.
