Lynn Teachers Union, Local 1037 v. Massachusetts Commission Against Discrimination

Lynch, J.

(dissenting, with whom O’Connor, J., joins). I cannot agree that the seniority system exception contained in G. L. c. 15IB, § 4 (17), is so limited that it only protects seniority systems from attacks based upon age discrimination.

General Laws c. 15IB contains a comprehensive legislative scheme prohibiting unlawful discrimination. Section 4 (2) makes it unlawful for a labor organization to discriminate against any of its members “because of race, color, religious creed, national origin, sex, age, ancestry ... or handicap.” The seniority system exception contained in paragraph (17) of that section states, in pertinent part, that

“[notwithstanding any provisions of this chapter, it shall not be an unlawful employment practice for any . . . labor organization ... to observe the terms of a bona fide seniority system” (emphasis supplied).

The court reads this exception out of the statute by discerning a legislative purpose from the title to the Act adopting *529 the exception. In so doing the court ignores the plain meaning of the statute, strains logic, violates long-standing rules of statutory construction, misapprehends the legislative process, and refuses to follow Federal precedents construing parallel provisions of Federal law.

The starting point of my analysis is the language of the statute itself, “the principal source of insight into legislative purpose.” Simon v. State Examiners of Electricians, 395 Mass. 238, 242 (1985), quoting Commonwealth v. Lightfoot, 391 Mass. 718, 720 (1984). It is, of course, axiomatic that in interpreting a statute we give meaning to each of its provisions. See Manning v. Boston Redevelopment Auth., 400 Mass. 444, 453 (1987); Casa Loma, Inc. v. Alcoholic Beverages Control Comm’n, 377 Mass. 231, 234 (1979). It seems to me that not only does the court fail to apply the plain meaning of the statute, but eliminates the word “chapter” from its interpretation, in effect giving the word no meaning at all. Chapter 15IB prohibits unlawful discrimination. The same section of c. 15IB (§ 4), that regulates the conduct of labor organizations in this regard, provides an exception for bona fide seniority systems from any of the provisions of the chapter. In other words, seniority systems are exempt from the comprehensive legislative scheme prohibiting unlawful discrimination. There is no ambiguity. Even if one were to suggest that the word “chapter” should be read as meaning section, the result does not change. That reading would mean the seniority systems are exempt from the antidiscrimination laws that apply to labor organizations. The court is able to discern a legislative purpose contrary to the statute’s plain meaning by ascribing talismanic powers to the title to the act adopting the exception. Not only does this ascribe an unheard of significance to the Act’s title, but it is neither compelled by logic nor consistent with the realities of the legislative process. The court pays lip service to the traditional rule of statutory construction, but ignores its application. The traditional rule is that a title to an Act cannot control the plain provisions of a statute although it may be a guide to resolving an ambiguity in the legislation. Breault v. Ford *530 Motor Co., 364 Mass. 352 , 353-354 n.2 (1973). Here the court looks to the title to find the ambiguity. Thus the title controls the statutory language. Such a construction stands the rule on its head.

Furthermore, there is no inconsistency between the Act’s title and the broad reading of the exception required by its plain meaning. If the court is correct in concluding that the “intent of the Legislature [was] to focus exclusively on the problem of age discrimination in the workplace,” ante at 524, then insulating a bona fide seniority clause from attack based upon all forms of discrimination is consistent with this purpose. This is so because by definition seniority clauses protect the oldest workers in terms of service. This almost always equates with chronological age, and thus the application of seniority clauses according to their terms, protects older workers and reduces the opportunities for discrimination against a worker because of age. For the same reason limiting the exception to age discrimination is to so narrow its application as to make it practically meaningless. Since, as I have pointed out, the natural tendency of the seniority clause is to protect older workers, there is no need that such clauses be insulated from attack based on age discrimination.

In addition, the court’s interpretation of the statute is contrary to the one Federal courts have given the parallel provision of Title VII, the Federal law proscribing employment discrimination. Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h) (1982), provides, in pertinent part:

“Notwithstanding any other provision of this sub-chapter, it shall not be an unlawful employment practice for an employer to apply different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin .. . .”

*531 The language of c. 151B, § 4 (17), closely echoes this Federal wording. The fact that the Federal version spells out the grounds for discrimination actions created by Title VII — race, color, religion, sex, national origin — from whose attack bona fide seniority systems are shielded, and c. 15IB, § 4 (17), uses the shorthand “chapter” — which, of course, creates actions for discrimination on the basis of race, color, religious creed, national origin, sex, age, ancestry or handicap — gives rise to no practical distinction. Therefore, in construing the later Massachusetts statutory provision, for which there is a prior existing Federal analog, “we are ordinarily guided by the construction given the parallel Federal statute by the Federal courts.” Howard v. Burlington, 399 Mass. 585, 589 (1987).

The United States Supreme Court has construed § 703(h) to “make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII,” International Bhd. of Teamsters v. United States, 431 U.S. 324, 352 (1977), and to “defin[e] what is and what is not an illegal discriminatory practice in instances in which the post-Act operation of a seniority system is challenged as perpetuating the effects” of pre-Title VII discrimination. Franks v. Bowman Transp. Co., 424 U.S. 747, 761 (1976). The Title VII bona fide seniority system exemption has since been frequently invoked in diverse contexts, including actions charging discrimination on the basis of race (see International Bhd. of Teamsters v. United States, supra; Franks v. Bowman Transp. Co., supra; sex (see United Air Lines, Inc. v. Evans, 431 U.S. 553 [1977]; Lorance v. A T & T Technologies, 109 S. Ct. 2261 [1989]) and national origin (see Delaware State College v. Ricks, 449 U.S. 250 [1980]). Since there is no essential difference between the wording of the bona fide seniority system provisions of the Federal statute and c. 15IB, the latter ought to be similarly construed.

Finally, by exalting the Act’s title as it does, the court ignores the reality of the legislative process. The legislative history of c. 266 demonstrates that it is an amalgam of fourteen separate bills forged by the Committee on Commerce and *532 Labor into a new Act which emerged from the committee with a title fairly descriptive of the general subject matter of the individual bills referred to the committee. There is nothing to suggest that the committee intended the title to be anything more than a generic description of the subject matter of the Act it was recommending. Certainly nothing suggests an intent to limit the plain meaning of words contained in the Act.

The error of this interpretation, it seems to me, is compounded when one takes into account the Massachusetts Legislature’s practices in relation to titles to Acts. Titles are altered throughout the legislative process, often by nonlegislators, frequently even after adoption.

Because I would apply the seniority clause exception, I would not reach the other issues discussed by the court.