# Appendix — Massachusetts Commission Against Discrimination v. Chaulk Services, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 1005

## Text

Supreme Court of the United States
OCTOBER TERM, 1995.

MASSACHUSETTS COMMISSION
AGAINST DISCRIMINATION,
Petitioner,

CHAULK SERVICES, INC.,
Respondent.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI

SCOTT HARSHBARGER
Attorney General
of Massachusetts

MACY LEE *

THOMAS A. BARNICO
Assistant Attorneys General

1 Ashburton Place, Room 2019

Boston, MA 02108

(617) 727-2200

“Counsel of Record

PETITION APPENDIX A

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

C.A. No. 94-12432-RCL

CHAULK SERVICES, INC.,

Plaintiff,

MASSACHUSETTS COMMISSION
AGAINST DISCRIMINATION
PETRINA DOULAMIS and
INTERNATIONAL ASSOCIATION OF
EMTs & PARAMEDICS, NAGE, AFL CIO,

Defendants.

Decision by Court. In accordance with allowance of the
Defendant's Motion to Dismiss on February 7, 1995;

IT IS ORDERED AND ADJUDGED

Judgment for the Defendants, Massachusetts Commission

Against Discrimination, Petrina Doulamis/Sullivan and

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International Association of EMTs & Paramedics, Nage, AFL CIO
as against the Plaintiff, Chaulk Services, Inc.

February 8, 1995 Robert J. Smith, Jr.
Clerk

(By) Deputy Clerk

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

C.A. No. 94-12432-RCL

CHAULK SERVICES. INC...
Plaintiff.
Vv.

MASSACHUSETTS COMMISSION
AGAINST DISCRIMINATION
PETRINA DOULAMIS and
INTERNATIONAL ASSOCIATION OF
EMTs & PARAMEDICS, NAGE, AFL CIO,

Defendants

PLAINTIFF'S MEMORANDUM OF LAW
IN SUPPORT OF ITS APPLICATION
FOR PRELIMINARY INJUNCTIVE RELIEF

This case is before the Court on a Complaint by Chaulk
Services, Inc., hereinafter "Chaulk," seeking a declaratory

judgment and injunctive relief against: the Massachusetts

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Commission Against Discrimination, hereinafter the
"Commission"; Petrina Doulamis/Sullivan, hereinafter
"Doulamis,” and the International Association of EMTs &
Paramedics a/w NAGE, AFL-CIO, hereinafter the "Union." For
the reasons set forth below, Chaulk states that its prayer for a
preliminary injunction should be granted.
DOCKETED

This court abstains from deciding the plaintiff's preemption
claim (raised by way of application for preliminary injunction) in
light of the pending state agency proceeding. Younger v. Harris,
401 U.S. 37 (1971); see also Ohio Civil Rights Commission v.
Dayton Christian Schools, Inc., 477 U.S. 619 (1986); Brotherhood
of Locomotive Engineers v. MCAD, 695 F. Supp. 1321 (D. Mass.

1988). For the same reasons, the defendant's motion to dismiss is

iiereby allowed.

Signed: Reginald C. Lindsay
U.S. District Judge

SA

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

NO. 95-1249

CHAULK SERVICES, INC

Plaintiff-Appellant,

MASSACHUSETTS COMMISSION
AGAINST DISCRIMINATION,
PETRINA DOULAMIS/SULLIVAN AND
INTERNATIONAL ASSOCIATION OF EMTs
& PARAMEDICS, NAGE, AFL-CIO

Defendants-Appellees.

APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS

(Hon. Reginald C. Lindsay,
U.S. District Judge}

Before

Torruella. Chief Judge.

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Lynch, Circuit Judge,
and Casellas*, District Judge

Arthur P. Menard, with whom Paul J. Murphy and Menard
Murphy & Walsh were on brief for appellant.

Macy Lee, Assistant Attorney General, with whom Scott
Harshbarger, Attorney General of Massachusetts, was on brief for
appellee Massachusetts Commission Against Discrimination;
Katherine McClure on brief for appellees Petrina
Doulamis/Sullivan and International Association of EMTs &
Paramedics, NAGE and AFL-CIO.

November 27, 1995

*of the District of Puerto Rico,
sitting by designation.

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CASELLAS, District Judge. Plaintiff-appellant Chaulk
Services, Inc. ("Chaulk") originally brought this action for
declaratory judgment, preliminary and permanent injunctive relief
against the Massachusetts Commission Against Discrimination
("MCAD") ("the Commission"), Petrina Doulamis/Sullivan
("Doulamis") and the International Association of EMTs &
Paramedics, NAGE, AFL-CIO ("the Union"), to prevent
defendants-appellees from proceeding with the case of Doulamis v.
Chaulk Services, Inc., 93-BEM-2145, then pending before the
MCAD, on the basis that the action was preempted by federal law,
particularly, the National Labor Relations Act ("NLRA") ("the
Act"), 29 U.S.C. J 151 et seq. The district court abstained from
deciding Chaulk's preemption claim, citing Younger v. Harris, 401
U.S. 37 (1971), Ohio Civil Rights Commission v. Dayton Christian
Schools, Inc., 477 U.S. 619 (1986) and Brotherhood of
Locomotive Engineers v. MCAD, 695 F. Supp. 1321 (D. Mass.
1988), and consequently dismissed Chaulk's complaint. We vacate

the judgment below and remand the case to the district court.

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I. STATEMENT OF THE CASE

A. Facts

In the middle of 1993, the International Association of
EMTs and Paramedics, NAGE, AFL-CIO, began a union
organization campaign at Chaulk. Doulamis became involved in
the campaign sometime during the fall of 1993, when she and Eric
Burgess, a male Chaulk employee, wrote a letter to the president of
Chaulk's parent company calling for the organization of a union.
On November 10, 1993, Chaulk's CEO Nicholas O'Neil and Joseph
Gilmore, vice-present, as part of their own campaign against the
union organization effort, met with Doulamis in an attempt to
pressure her into becoming a non-union advocate. Doulamis
declined their invitation.

As a result of this meeting, the Union filed unfair labor
practice charges on November 29, 1993 with the National Labor
Relations Board ("NLRB") against Chaulk, claiming that it coerced
and intimidated Doulamis, a known union organizer, by

questioning her regarding union activities and threatening

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retaliation for those union activities, in violation of the Act. On
December 6 and 9, 1993, the Union filed two additional charges
with the NLRB, both of which alleged that Chaulk interfered with
Doulamis’ labor activity rights and discriminated against her
because of her union organization efforts.

Thereafter, the NLRB issued a complaint against Chaulk
alleging specific violations of 4] 8(a)(1) and (3) of the NLRA, and
charging that Chaulk had interfered with, restrained and coerced
several employees, including Doulamis, in the exercise of nights
guaranteed by § 7 of the Act. With respect to Doulamis, the
complaint alleged that on November 29, 1993 Chaulk issued a
written warning and on December 7, 1993 issued a letter addressed

to Doulamis threatening her with discipline if she attended any

! The Union filed several additional unfair labor practice charges against

Chaulk stemming from its alleged interference with the protected rights of
numerous other employees. Here, we refer in particular only to those which,
according to the parties, involve charges of unlawful conduct directed against
Doulamis. Furthermore, while Doulamis is not named as the aggrieved
employee in these charges, both parties agree that the employee referred to
therein is, in fact, Doulamis.

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further 401(K) meetings held by Chaulk with its employees. In
addition, the complaint charged that on December 2, 1993, Chaulk
suspended the coauthor of the pro-union letter, Eric Burgess.
According to the complaint, Chaulk engaged in this conduct
because it mistakenly believed that Doulamis, together with several
of her fellow employees, had engaged in misconduct arising out of
union or other protected concerted activity. See Complaint and
Notice of Hearing at {J 7-8. It is also alleged that these employees
formed, joined and assisted the Union and otherwise ergaged in
concerted activities, and that Chaulk's conduct was a deliberate
attempt to discourage the employees from engaging in these
activities, in violation of sections 8(a)(3) and (1) of the Act. See
Complaint and Notice of Hearing at {J 7-10.

A full and comprehensive settlement agreement was
reached between Chaulk and the NLRB in March 1995 regarding
these claims. As part of the settlement, Chaulk agreed to, inter alia
, expunge from its files any reference to the transfer of Eric

Burgess; the written warnings set forth in the complaints of

de teeeiat

rent a ae

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Doulamis, Richard Graham, Chris Adler, Gary Winitzer, Jim
Taubert and Jean Taubert; the suspension of Eric Burgess, Chris
Adler, Jim Taubert, Jean Taubert, Gary Winitzer, Michael Cook,
Kathryn Edwards and James McLaughlin; and the terminations of
Fran Wilkerson, John Borden and McLaughlin. In addition,
Chaulk agreed to pay out approximately $12,000 in back pay to
these employees.
Meanwhile, on December 1, 1993, after the Union had
already filed its first charge with the NLRB, Doulamis filed a
complaint with the MCAD against Chaulk, claiming she had been
a victim of unlawful sex discrimination. Specifically, she
complained of being harassed about her union activity, allegedly
because of her gender, in that the "males who are also involved [in
the union activity] are not being harassed."
On February 18, 1994, Chaulk moved to dismiss Doulamis'
complaint at the MCAD for lack of jurisdiction, on the grounds
that it was preempted by federal law. On May 13, 1994, the

MCAD issued an order denying the motion to dismiss and

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retaining jurisdiction over Doulamis' discrimination claims,
reasoning that it did not have to address the merits of the
underlying labor dispute in order to resolve the allegations of
gender discrimination. The Commission then promptly issued a
set of interrogatories to Chaulk, requesting detailed information
about all known union organizers, their role in organizing efforts
and any significant acts of union organizing known to appellant,
including copies of any communications between Chaulk and
Doulamis relative to the union organization effort.

B. Proceedings Below

The present action was filed in the United States District
Court for the District of Massachusetts on December 8, 1994,
seeking a declaratory judgment as well as an injunction barring the
continued prosecution of Doulamis' complaint before the MCAD.
Chaulk claimed that the Commission's assertion of state authority
over her charge directly threatened and significantly interfered with
the jurisdiction of the NLRB. As noted above, the district court

granted MCAD's motion to dismiss on abstention grounds. It did

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not decide the preemption issue. Chaulk now appeals the district
court's judgment.
Il. ANALYSIS
A. Preemption
Relying on the doctrine of preemption first enunciated in
San Diego Building Trades v. Garmon, 359 U.S. 236 (1959),
appellant argues that the district court erred in allowing the
Commission's motion to dismiss on the grounds of Younger
abstention and that it should have decided the preemption issue.
Citing primarily to Bud Antle, Inc. v. Barbosa, 35 F.3d 1355 (9th
Cir. 1994), Chaulk asserts that when it is clear that the state
tribunal is acting beyond the lawful limits of its authority, there is
no principle of comity that is served by abstention. Id. at 1356.
Accordingly, it urges us to find the Younger abstention doctrine
inapplicable to this case, address the merits of its preemption
claim, and declare that appellee's charge of sex discrimination
before the Commission is indeed preempted by federal law.

We begin by delineating the present scope of the so called

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Garmon preemption doctrine. The Supreme Court held in Garmon
that when an activity is arguably subject to 47 or § 8 of the
National Labor Relations Act, the states as well as the federal
courts must defer to the exclusive competence of the NLRB if the
danger of state interference with national labor policy is to be
averted. Id. at 245. When Congress enacted the NLRA, it enacted
comprehensive procedural rules and created the NLRB to
administer this specially designed regulatory structure. The result
was a complex and interrelated scheme of federal law, remedies

and administration designed to achieve uniformity in our national

labor policy. Garmon, 359 U.S. at 242; New York Telephone Co.
v. New York Dept. of Labor, 440 U.S. 519, 527 (1979); Jones v.
Truck Drivers Local Union No. 299, 838 F.2d 856, 872 (6th Cir.
1988) (Merritt, J., concurring in part and dissenting in part).

In order to achieve the desired uniformity, Congress
entrusted the interpretation and enforcement of the NLRA to a

centralized administrative agency, armed with its own procedures,

and equipped with its specialized knowledge and cumulative

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experience. See Garmon, 359 U.S. at 9242. This administrative
scheme was designed to avoid the danger of conflicting or
incompatible adjudications such as would inevitably result from
having multiple forums, with their diverse procedures, entertain
claims under the NLRA. Garner v. Teamsters. Chauffeurs and
Helpers Local Union No. 776, 346 U.S. 485, 490-91 (1953). The
Garmon rule is therefore intended to preclude state interference
with the NLRB's interpretation and enforcement of the integrated
scheme of regulation established by the NLRA. Golden State
Transit Corp. v. City of Los Angeles, 475 U.S. 608, 613 (1986).

Withal, the Garmon rule admits of some exceptions to the
NLRB's primary jurisdiction. For instance, where the conduct at
issue is of only "peripheral concern" to federal labor policy, the
states are not precluded from regulating the activity. Garmon, 359
US. at 243. Similarly, state action is not preempted where the
regulated conduct touches interests "so deeply rooted in local
feeling and responsibility that, in the absence of compelling

congressional direction, courts carnot infer that Congress has

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deprived the states of the power to act." Id.

When called to determine whether those exceptions apply,
courts must balance the state's interest in remedying the effects of
the challenged conduct against both the interference with the
NLRB 's ability to adjudicate the controversy and the risk that the
state will approve conduct that the NLRA prohibits. Belknap, Inc.
v. Hale, 463 U.S. 491, 498-499 (1983); NLRB v. State of Ill. Dept.
of Emp. Sec., 988 F.2d 735, 739 (7th Cir. 1993). In doing so, we
intentionally focus on the conduct at the root of this controversy,
namely Chaulk's alleged interference with Doulamis' union

activities, as opposed to the descriptive title of sex discrimination

2 Courts have recognized a third exception to the Garmon doctrine where
Congress has expressly carved out such an exception to the NLRB's primary
jurisdiction. See Tamburello v. Comm-Tract Corporation, No. 95-1295, slip op.
at 6 (ist Cir. October 2, 1995) (citing Vaca v. Sipes, 386 U.S. 171, 179-80
(1967); Brennan v. Chesnut, 973 F.2d 644, 646 (8th Cir. 1992)). Congress has
not made an exception to the NLRB's primary jurisdiction for claims alleging
sex discrimination in the context of an unfair labor practice. See Jones v. Truck
Drivers Local Union, 838 F.2d at 861 (sexual discrimination is a breach of duty
of fair representation and within scope of t 8 of the NLRA); NLRB v. Local
106, 520 F.2d 693 (6th Cir. 1975) (same). This exception therefore does not
apply to the facts in this case.

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given to her cause of action before the MCAD. That is because
preemption is designed to shield the system from conflicting
regulation of conduct. "It is the conduct being regulated, not the

formal description of governing legal standards that is the proper

focus of concern.’ Amalgamated Ass'n of St.. E.R. & M. C, Emp.
v. Lockridge, 403 U.S. 274, 292 (1971). See also, Garmon, 359
U.S. at 246 ("It is not the label affixed to the cause of action under
state law that controls the determination of the relationship
between state and federal jurisdiction”).

Doulamis’ complaint highlights the risk that a state cause of
action will touch on an area of primary federal concern. She
complains of incidents of interference with her union activities as a
union organizer. The very same conduct provides the factual basis

for the unfair labor practice charges brought by the Union on her

behalf, which were eventually incorporated into the complaint and

notice of hearing issued by the NLRB. Her claims are
fundamentally grounded in an assertion that the rights which her

employer interfered with involve her union activity. Where, as

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here, the case involves conduct arguably prohibited by 4 8 of the
Act, the NLRB has broad authority to determine the appropriate
remedy for wronged employees.’ "In fact, since remedies form an
ingredient of any integrated scheme of regulation, to allow the state
to grant a remedy here which has been withheld from the NLRB
only accentuates the danger of conflict." Garmon, 359 U.S. at 247;
Richardson v. Kruchko & Fries, 966 F.2d 153, 157 (4th Cir. 1992).
Board authority over claims of interference with union activities is
not merely of peripheral concern to the Act. Rather, the Board's
authority to remedy such practices is central to its purpose. See
Tamburello v. Comm-Tract Corporation, No. 95-1295, slip op. at 9
n. 5 (1st Cir. October 2, 1995).

Moreover, the fact that the Union clearly considered

> MCAD presses the argument that gender-based discrimination is not even
within the realm of prohibited activities under the NLRA. According to MCAD,
the scope of prohibited discrimination under the Act is limited to discrimination
based on union activities or membership. Still, the argument has been made
successfully that sexual discrimination constitutes an unfair labor practice under

] 8 of the NLRA. See Jones v. Truck Drivers Local Union, 838 F.2d at 861

(sexual discrimination is a breach of duty of fair representation and within scope
of { 8 of the NLRA); NLRB v. Local 106, 520 F.2d 693 (6th Cir. 1975) (same).

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Chaulk's conduct an unfair labor practice, and that the Board
entertained such charges, only buttresses the Court's conclusion
that said conduct is not only "arguably", but obviously prohibited
under section 8(a) of the NLRA. It also highlights the very real
danger of interference with the NLRB's jurisdiction, as it was
precisely the Board's timely intervention which in this case led to
the agreement through which Chaulk pledged, among other things,
not to engage in the challenged conduct, or take similar actions to
hinder its employees in their union activities.

Significantly, the Supreme Court has held that in cases
where the underlying conduct is arguably prohibited by the NLRA,
application of the so-called "local interests" exception hinges, in
the first place, upon the existence of a significant state interest in
protecting its citizens from the challenged conduct. In second
place, the controversy which could be presented to the state court
must be different from that which could have been presented to the
NLRB. Sears, Roebuck & Co. v. San Diego County Dist. Council
of Carpenters, 436 U.S. 180, 196-97 (1978). Ses also, Tamburello

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v. Comm-Tract Corporation, No. 95-1295, slip op. at 14 (1st Cir.
October 2, 1995).

Under the Sears rationale, the critical inquiry is whether the
controversy presented to the state court is identical to or different
from that which could have been presented to the NLRB.‘ Sears,
436 U.S. at 197. The Court reasoned that it is only in the former
situation that a state's exercise of jurisdiction necessarily involves a
risk of interference with the unfair labor practice jurisdiction of the
Board which the Garmon doctrine was designed to avoid. Id. We
assume arguendo that the Commonwealth of Massachusetts has a

significant interest in protecting its citizens against sex

* We note that Sears is not entirely on point, as it differs from the instant
case in at least one fundamental respect. In that case, the Court was presented
with a situation where the party seeking relief in the state forum had no right to
invoke the Board's jurisdiction and the party that had the right to invoke the
Board's jurisdiction had failed to do so. The Court expressed concern that in the
circumstances of that case, Sears may not have a chance for a hearing on its
claims if state jurisdiction were preempted without any assurance that the
dispute might eventually be brought before the NLRB. The Court reasoned that
preemption was justified only when an aggrieved party has a reasonable
opportunity either to invoke the Board's jurisdiction himself or else to induce his
adversary to do so. Id. at 201. Here, of course, there is no such concer, as the
Union filed the unfair labor practice charges with the NLRB even before
Doulamis filed her gender discrimination claims before the Commission.

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discrimination in their employment. Following the guidelines set
forth by the Supreme Court in Sears, we therefore examine
whether the controversy before the state forum would indeed be the
same as that which could be brought before the NLRB. Id.

In this regard, it is telling that the Union, upon learning of
Chaulk's alleged interference with Doulamis' activities as a union
organizer, promptly filed an unfair labor practice charge on her
behalf, claiming violations of § 8 of the Act--thereby clearly
characterizing the controversy as a labor dispute, subject to the
NLRB's primary jurisdiction. For its part, the NLRB received the
Union's allegations regarding Chaulk's conduct--the same conduct
that would later form the basis for Doulamis’ discrimination claim
before the MCAD--investigated them, proceeded then to issue a
Complaint and Notice of Hearing, and eventually settled the
matter. Plainly, this is not a case where the NLRB declined to
exercise its lawful jurisdiction over a labor controversy, or where
the NLRB's actual exercise of jurisdiction remains a matter of

speculation. On the contrary, the Board in this case moved

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aggressively to acquire such jurisdiction and bring the matter to a
full and speedy resolution.

Furthermore, even Doulamis' own pleadings before the
Commission couch her claims in terms of a labor dispute within
the NLRB's primary jurisdiction. Her complaint accuses Chaulk of
harassment "about [her] union activities.” She also claims to have
been "intimidated by Mr. O'Neil about involvement in union
activity” and "accused of distracting the other employees with
union activity." As noted above, such conduct on the part of
Chaulk, if adequately established through competent evidence,
would constitute an undue interference with Doulamis'’ rights under
{7 of the NLRA and consequently a violation of § 8(a)(1) of the
Act. The application of additional remedies to the conduct here at
issue only invites conflict. As the Supreme Court stated in
Garmon, "[t]he hitiseniog to pay compensation can be, indeed is
designed to be, a potent method of governing conduct and

controlling policy." Id. at 247. See Sears, Roebuck & Co,, 436
U.S. at 193-94 ("[T]he pertinent inquiry is whether the two

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potentially conflicting statutes [are] brought to bear on precisely
the same conduct.”) (citations omitted). As discussed above,
Doulamis’ claim of sex discrimination is founded upon the
identical facts which provided the basis for the unfair labor
practices charge brought on her behalf by the Union. Accordingly,
under the Garmon rationale, her claim before the Commission is
expressly preempted.

Moreover, as pointed out by Chaulk, the interrogatory
issued by the MCAD in the course of the investigation and
prosecution of Doulamis’ case belies the Commission's assertion
that it need not delve into the labor aspects of the controversy in
order to dispose of her gender discrimination claims. Rather, the
interrogatory is further proof that issues of labor law ordinarily
considered to be within the NLRB's primary jurisdiction are
precisely the type of questions that lie at the heart of this
controversy.

Finally, in order to determine the merits of Doulamis'

claims of sex discrimination, the MCAD will have to decide

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whether in fact Doulamis was engaged in protected union activity,
and if so, whether she was engaged in the same type of union
activity as the other union organizers. Such a finding requires that
the MCAD become embroiled in a factual and legal determination
of what constitutes union activity, a task which has been expressly
reserved to the jurisdiction of the NLRB. More importantly, if the
Commission were allowed to entertain Doulamis' claim of sexual
discrimination, there is the potential risk that it will incorrectly
apply the substantive rules governing labor controversies laid out
by Congress in the NLRA. It is precisely this potential for
incompatible or conflicting adjudications that Congress sought to
avoid by leaving these determinations in the first instance to the
NLRB.

In the end, no recharacterization of this claim can obscure
the fact that, at bottom, this is a classic example of an unfair labor
practice claim of the kind traditionally handled in the first instance
by the NLRB. Since the controversy before the MCAD and that

resolved by the NLRB are the same in a fundamental respect, and

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the risk of interference with the Board's jurisdiction is obvious and
substantial, we hold that the MCAD has no jurisdiction to entertain
Doulamis' charge of sexual discrimination based on her employer's
alleged interference with her union activities. International Union
of Operating Engineers v. Jones, 460 U.S. 669, 674 (1983).°

B. Abstention

We turn now to what is in essence the threshold issue in
this appeal-whether the district court erred in abstaining under the
Younger doctrine. In Younger v. Harris, 401 U.S. 37 (1971), the
Supreme Court held that a federal court should not enjoin a
pending state criminal proceeding except in the very unusual

situation that an injunction is necessary to prevent great and

S$ The dissent devotes a considerable number of pages to the issue of
whether Title VII and the NLRA provide concurrent remedies. The Supreme
Court has made clear however, that when a state proceeding is claimed to be
preempted by the NLRA under Garmon, the issue is a choice-of-forum rather
than a choice-of-law question. See International Longshoremen’s Association v.
Davis, 476 U.S. 380, 391 (1986). As such, “it is a question whether the State or
the Board has jurisdiction over the dispute." Jd. If--as here--there is preemption
under Garmon, then state jurisdiction is extinguished. Id. See also.
International Union of Operating Engineers v. Jones, 460 U.S. at 680-81; Sears,
436 U.S. at 199 n. 29; Garmon, 359 U.S. at 245.

&

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immediate irreparable injury. Younger stands for the proposition
that principles of comity require "a proper respect for state
functions, a recognition of the fact that the entire country is made
up of a Union of separate state governments, and a continuance of
the belief that the National Government will fare best if the States
are left free to perform their separate functions in their separate
ways." Id. at 44. The Court has since applied its reasoning in
Younger to civil proceedings in which important state interests are
involved. See Hoffman v. Pursue, Ltd., 420 U.S. 592 (1975);
Juidice v. Vail, 430 U.S. 327 (1977); Trainor v. Hernandez, 431
U.S. 434 (1977).

In Ohio Civil Rights C tn 0 Christian Schools,
477 U.S. 619 (1986), the principles of comity first announced in
Younger were made extensive to state administrative proceedings.
As a result, where (1) vital state interests are involved, (2) in an
ongoing state judicial (or administrative) proceéding, a federal
court should abstain from exercising its jurisdiction over a claim,

(3) unless state law clearly bars the interposition of the

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constitutional claims. See Middlesex County Ethics Comm. v.
Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); Moore v. Sims,
442 U.S. 415 (1979). "The pertinent inquiry is whether state
proceedings afford ar. adequate opportunity to raise the
constitutional claims." Middlesex, supra.

The dissent asserts that, rather than a principle of
discretionary deference, Younger abstention requires a district
court to abstain whenever a case falls within the doctrine’s
parameters. To the extent it relies on the Supreme Court's decision
in Colorado River Water Conservation District v. United States,
424 U.S. 800, 816 n. 22 as support for this blanket rule, however,
we respectfully differ. The cited passage on which the dissent
relies clearly refers to that category of cases where federal
jurisdiction has been invoked for the purpose of restraining state
criminal proceedings. And even for that category of cases, the
Supreme Court makes clear that abstention is only appropriate
absent bad faith, harassment, or a patently invalid state statute. Id.
at 816. In fact, Colorado River strongly reaffirmed the basic

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principle that abstention from the exercise of federal jurisdiction is

the exception, not the rule:

The doctrine of abstention, under which a district
court may decline to exercise or postpone the
exercise of its jurisdiction, is an extraordinary and
narrow exception to the duty of a district court tc
adjudicate a controversy properly before it.
Abdication of the obligation to decide cases can be
justified under this doctrine only in the exceptional
circumstances where the order to the parties to
repair to the state court would clearly serve an
important countervailing interest. It was never a
doctrine of equity that a federal court should
exercise its judicial discretion to dismiss a suit
merely because a State court could entertain it.

Colorado River, 424 U.S. at 813-14 (emphasis supplied; citations
omitted). See also New Orleans Public Service, Inc, v. Council of
the City of New Orleans, 491 U.S. 350, 359 (1989).

The Commission argues that the case at bar fits squarely

within the principles of Younger abstention. We disagree. First
the procedural posture of this case differs from that of the
customary case where abstention is traditionally applied.
Ordinarily, federal courts abstain from the exercise of jurisdiction

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over a particular controversy out of respect for an ongoing state
proceeding begun before the federal action. It is thought that this
procedural mechanism forestalls the friction that can arise when |
the business of the two systems--state and federal--overlaps. But
the notion of comity, which to a great extent underlies the Younger
doctrine of abstention, must accommodate the legitimate interests
of both the state and national governments. Younger, 401 U.S. at
44; Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10 (1987).

In abstaining, the court below seemingly focused on the
situation that existed on December 8, 1994, when Chaulk's
complaint for declaratory and injunctive relief was filed in the
United States District Court for the District of Massachusetts. In
doing so however, the court ignored the fact that an unfair labor
practice charge, based on the same facts underlying Doulamis’
complaint of sex discrimination, had been filed against Chaulk ;
prior to her discrimination claims and was pending before the
NLRB at the time of the filing of her action before the
Commission. In addition, shortly after Doulamis filed her action,

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additional charges were filed by the Union, and the Board
continued to exercise its jurisdiction over these claims.

Federal courts seek to avoid needless conflict with state
agencies and withhold relief by way of injunction where state
remedies are available and adequate. Alabama Public Service
Commission v. Southern Railroad Co,, 341 U.S. 341 (1951). But
where Congress, acting within its constitutional authority, has
vested a federal agency with exclusive jurisdiction over a subject
matter and the intrusion of a state would result in a conflict of
functions, the federal court may enjoin the state proceeding in
order to preserve the federal right. American Federation of Labor
v. Watson, 327 U.S. 582, 593-95 (1946); Bowles v. Willingham,
321 U.S. 503, 510-11 (1944); Public Utilities Commission of Ohio
v. United Fuel Gas Co,, 317 U.S. 456, 468-70 (1943).

This case is similar to Freehold Cogeneration Associates,

1178 (3d Cir. 1995). In that case, Freehold sought a declaratory

judgment in the United States District Court for the District of

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New Jersey that the Board of Regulatory Commissioners of the
State of New Jersey ("BRC") was preempted by the Federal Public
Utility Regulatory Policies Act ("PURPA") from modifying the
terms of a previously approved power purchase agreement between
Freehold and Jersey Central Power and Light Company
("JCP&L"), a New Jersey public utility. Freehold also sought an
order enjoining the ongoing BRC proceedings. The district court
dismissed for lack of subject matter jurisdiction. On appeal, one of
the arguments raised by JCP&L was that the federal court should
abstain from resolving the merits of the case even if it was found to
possess subject matter jurisdiction. The Third Circuit rejected the
argument saying:

{Ojur concern is with carrying out a federal

statutory scheme promoting the development of

alternative energy sources. The alleged intrusive

action is not by the federal government, but, on the

contrary, by a state regulatory agency. We conclude
that abstention is not appropriate in this case and
does not warrant any extended discussion.

Freehold Cogeneration, 44 F.3d at 1187 n.6. As in Freehold, we
are concerned here with carrying out a federal statutory scheme, in

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this case on promoting the development of a uniform national labor
policy. The alleged intrusive action is not by the federal
government, but by the MCAD's purported regulation of conduct
within the NLRB's jurisdiction.

We note that in the particular context of this case, the
application of Younger abstention would result in significant
prejudice to Chaulk, who entered into a comprehensive settlement
agreement with the NLRB through which all unfair labor practice
claims were resolved, subject to Chaulk's compliance with the
conditions set forth therein, only to be faced with the prospect of
having to defend its actions once again, this time before a state
forum. Such an expansive interpretation of the abstention doctrine
would have the effect of encouraging duplicative litigation, with
the resultant waste of judicial and administrative resources, as well
as the danger to federal-state relations that could result from
conflicting adjudications.

Under these circumstances, where a federal agency with

primary jurisdiction over the controversy has already exercised

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said jurisdiction, it would be inconsistent with the above
mentioned principles of comity and equal respect for the interests
of both the federal and state government for a federal court to
abstain on Younger grounds from deciding a claim properly before
it, in order to give way to a state administrative action filed after
the federal proceedings are underway. Put simply, comity works
both ways.

The Commission nevertheless urges us to extend the
application of Younger and its progeny to the circumstances of this
case. To this end, MCAD argues that the facts before us satisfy the
relevant three part test set out by the Supreme Court in Middlesex,
457 U.S. at 432. As it is however, even an analysis of the case
within this framework leads us to the same conclusion. Abstention
was improper in this case. We explain.

A number of courts have held that Younger abstention is
inappropriate where a claim of preemption is "facially conclusive"
or "readily apparent", because no significant state interests are
served when it is clear that the state tribunal is acting beyond the

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lawful limits of its authority. Bud Antle, Inc. v. Barbosa, 35 F.3d
1355, 1365-66 (9th Cir. 1994), as amended by, 45 F.3d 1261,
1272-73 (9th Cir. 1994); Gartrell Construction, Inc. v. Aubry, 940
F.2d 437, 441 (9th Cir. 1991) (citing Champion International Corp.
v. Brown, 731 F.2d 1406 (9th Cir. 1984); National R.R. Passenger
Corp. v. Florida, 929 F.2d 1532, 1537, n.12 (11th Cir. 1991)
(citing Bagget v. Department of Professional Registration, 717
F.2d 521, 524 (11th Cir. 1983)); Southwestern Bell Tel. v. Ark.
Public Service Commission, 824 F.2d 672, 673 (8th Cir. 1987);
Kentucky W, Va, Gas Co. v. Pennsylvania Pub. Util. Comm'n, 791
F. 2d 1111, 1115 (3rd Cir. 1986). Chaulk asserts that the
Commission is patently acting beyond its jurisdictional boundaries
and therefore, no principle of comity precluded the district court
from entertaining its claim of preemption on the merits. In
response, the Commission cites the Supreme Court's decision in
Orleans, 491 U.S. 350 (1989) ("NOPSI") for the proposition that

the mere assertion of a substantial constitutional challenge to state

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action, such as an argument of federal preemption engenders, will
not aione compel the exercise of federal jurisdiction. Whatever the
merits of MCAD's assertion however, even the NOPS] decision
leaves open the possibility that a "facially conclusive" claim of
preemption might render abstention inappropriate. ]d. at 367.
Consequently, we examine the merits of Chaulk's contention that
abstention is also inappropriate because preemption is readily
apparent in this context.

We have explained above the particularities of Doulamis'

claims before the Commission. She complains of incidents of

interference with her union activities as a union organizer. We
have observed that the very same conduct provided the factual
basis for the unfair labor practice charges brought by the Union on
her behalf. We have also highlighted the fact that the NLRB
incorporated these charges into a complaint and notice of hearing
claiming violations to sections 8(a)(1) and 8(a)(3) of the NLRA.
As we have noted, her claims are fundamentally grounded in an
assertion that the right which her employer interfered with involve

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her union activity.

Under these circumstances, were we to allow Doulamis'
state claims to go forward by simply artfully pleading her claim of
unfair labor practices as one motivated by a discriminatory animus
because of her gender, we would be compromising the NLRB's
role as chief arbiter of labor disputes. Indeed, there are few unfair
labor practices which could not be similarly repackaged. Similarly
aggrieved individuals could use such an opening to bypass the
NLRB merely by ascribing a myriad of discriminatory motives to
the relevant conduct (i.e. age, race, religious belief, etc.), thereby
creating a system of labor dispute adjudication parallel to the
NLRB, leaving the state and federal courts to grapple piecemeal
with issues Congress intended primarily for NLRB resolution.

._ . Faced with this particular factual scenario, we find that -
under the Garmon doctrine it is "readily apparent” that the
Commission is acting beyond its jurisdictional authority by
entertaining Doulamis’ complaint, for it is readily apparent that
Chaulk's conduct at issue is at least arguably prohibited by, and

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thus subject to the NLRA. Accordingly, we hold that abstention
was inappropriate and the district court abused its discretion when
it dismissed Chaulk's complaint on the basis of Younger
abstention.
IL. CONCLUSION

In sum, pursuant to the Garmon preemption doctrine, we
find that Ms. Doulamis’ claims are preempted by the NLRA,
thereby depriving the MCAD of jurisdiction to entertain her action
based on gender discrimination. In addition, we find that
abstention was inappropriate in this case, as the principles of
comity and of equal respect for state and federal functions weighed
against such an abdication of federal jurisdiction over the present
controversy. Accordingly, Chaulk is entitled to injunctive relief,
consistent with this opinion.

Finally, with regard to MCAD's argument that the Eleventh
Amendment bars Chaulk's claims against the Commission, we
point out that the Supreme Court has recognized that the Eleventh

Amendment does not preclude properly pleaded actions ag»inst

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state officials when the relief sought is prospective and equitable in
nature. See Ex Parte Young, 209 U.S. 123 (1908); Will v.
Michigan Department of State Police, 491 U.S. 58 (1989). We

therefore reverse the judgment of the district court and remand the
case, so that Chaulk may address any pleading deficiencies that
currently preclude the continued prosecution of its petition for
relief.

Reversed and remanded.

LYNCH, Circuit Judge, dissenting. Because Congress
has clearly expressed its intent to allow state anti-discrimination
statutes to operate in areas such as this that may overlap with the
National Labor Relations Act ("NLRA"), Petrina
Doulamis/Sullivan's action is not, I believe, preempted. Because
the federal courts are being asked to enjoin the Massachusetts
Commission Against Discrimination ("MCAD") from hearing an
ongoing gender discrimination action over which the state agency
plainly has jurisdiction, I believe that abstention is appropriate. |

respectfully dissent.

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Under San Diego Building Trades Council, Milkmen's
Union. Local 2020 v. Garmon, 359 U.S. 236 (1959), and its

progeny, and in light of the clear congressional mandate under
Title VII, 42 U.S.C.A. § 2000e to e-17 (West 1994 & Supp. 1995),
that state anti-discrimination statutes have authority over claims for
discrimination coextensive with Title VII, Doulamis' MCAD claim
coexists with and is not displaced by the federal labor laws. The
employer's defense here presents no "facially conclusive" claim for
preemption. See New Orleans Public Service, Inc. v. Council of
City of New Orleans, 491, U.S. 350, 367 (1989). Garmon
preemption is a question over which the state courts have
concurrent jurisdiction and Chaulk Services, Inc. ("Chaulk") will
have a full and fair opportunity to present the question to the
Massachusetts courts. In my view, abstention is required under
Younger v. Harris, 401 U.S. 37 (1971).
I.
Garmon says that "[w]hen an activity is arguably subject to

47 or 48 of the [NLRA], the States as well as the federal courts

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must defer to the exclusive competence of the National Labor
Relations Board ["NLRB"] if the danger of state interference with
national policy is to be averted." Garmon, 359 U.S. at 245°
Garmon also says that this principle is not absolute. There is no
need to defer to the NLRB where the conduct at issue is of
"peripheral concern" to federal labor policy or where the state
regulated activities touch "interests . . . deeply rooted in local
feeling and responsibility." Id, at 243-44.

The Massachusetts anti-discrimination statute touches
"interests so deeply rooted in Ibcal feeling and responsibility that,
in the absence of compelling congressional direction, [courts
cannot] infer that Congress [has] deprived the States of the power
to act." Garmon, 359 U.S. at 244. This is so whether or not
invidious discrimination in employment can be described as being
of "peripheral concern" to the NLRA. Cf. Massachusetts Electric
Co. v. Massachusetts Commission Against Discrimination, 375

6

Sex discrimination is not specifically addressed in the NLRA and so it
is not "clearly prohibited" by § 8 or "clearly protected" by {| 7 of the NLRA.

41A
Mass. 160 174 (1978) (employment discrimination of peripheral
concern to the NLRA); Walker Mfg. Co. v. Industrial Commission.
27 Wis.2d 669, 681 (1965) (age discrimination of peripheral
concern to Labor Management Relations Act). Originally enacted

in 1946, the Massachusetts anti-discrimination statute, Mass. Gen.

L. ch. 151B, 99 1-10 (1994), is eighteen years older than Title VII.
See 1946 Mass. Acts 368. It regulates conduct in employment in
order to carry out the Commonwealth's interest in ensuring that its
workplaces are free from particular categories of discrimination. It
represents no less an exercise of Massachusetts’ police power than
building codes or fire regulations. The interests it protects are at
least as weighty as the interests sought to be vindicated in actions
the Supreme Court has specifically held not preempted by Garmon.

See Belknap, Inc. v. Hale, 463 U.S. 491 (1983) (breach of contract

and misrepresentation actions by replacement workers); Farmer v.

United Brother
25, 430 U.S. 290 (1977) (infliction of emotional distress); Linn v.

United Plant Guard Workers of America, Local 114, 383 U.S. 53

42A
(1966) (libel).

That chapter 151B touches interests deeply rooted in local
feeling and responsibility is not disputed. Rather, the majority
asserts that Doulamis' claim is not really a sex discrimination
claim, describing Doulamis' claim as the product of "artful[]
pleading." With deference, I believe the record establishes that
Doulamis' claim is clearly one for sex discrimination and has been
treated as such by the MCAD.’

On the facts as alleged, Doulamis has stated a claim before
MCAD for sex discrimination under chapter 151B. She asserts,
inter alia:

On November 10, 1993, I was harassed about my
union activity. I believe the reason is because I am
a female. The males who are also involved are not
being harassed. Therefore, 1 charge Respondent
with unlawful discrimination against me, in
violation of M.G.L. Chapter 151B . . . and Title VII

? Doulamis' claim cannot be preempted simply because the case arises

from a labor dispute. The Supreme Court has squarely held that Garmon
preemption does not turn on whether a claim arises in the context of a labor
dispute. Linn, 383 U.S. at 63 ("Nor should the fact that defamation arises
during a labor dispute give the Board exclusive jurisdiction to remedy its
consequences.”").

iia il

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I believe that I am being single[d] out by the
Respondent because I am a fernale. There are
numerous other male union organizers who are not
being harassed.

That Doulamis asserts a bona fide sex discrimination claim
is buttressed by the underlying papers in the pleadings submitted
by Chaulk to the district court. Doulamis was apparently a
well-respected employee and was featured in Chaulk's publicity
materials. From the time she began working at Chaulk in 1990
until the autumn of 1993, Doulamis received no written warnings
and no patient complaints. In the middle of 1993, the International
Association of EMTs and Paramedics began a union organizing
campaign at Chaulk. Although not initially involved, Doulamis
became involved in the campaign during the fall of 1993, when she
and Eric Burgess, a male Chaulk employee, wrote a letter to the
president of Chaulk's parent company calling for organization of a
union. On November 10, 1993, Doulamis was called from a
training session to meet with the CEO of Chaulk, Nicholas O'Neal,

and a vice president, Joseph Gilmore. The two men told Doulamis

44A
at that meeting that she was "pretty" and that they believed that the
other employees at Chaulk would listen to her because she was
"pretty." They asked her to become a non-union advocate, saying
that her physical appearance would persuade other employees to
vote against the union. She refused. Shortly thereafter, Doulamis
began receiving a series of harassing warnings from Chaulk
management about her conduct on the job and her union activities.
Burgess, who had co-authored the pro-union letter with Doulamis,
did not receive such harassment.

Doulamis believed that she was being singled out for
punishment for her union activities because of her sex. The heart
of her complaint before the MCAD was that she was being
harassed for her union activities while male union organizers --
including one who had co-authored the letter precipitating the
harassment -- were not (or at least were not until after Doulamis
filed her complaint with the MCAD). This allegation states a

prima facie claim of sex discrimination under chapter 151B. See

Ramsdell v. Western Massachusetts Bus Lines, Inc., 415 Mass.

45A

673, 679 (1993); see also Blare v. Husky Injection Molding Sys.
Boston, Inc., 419 Mass. 437 (1995).

Under the facts of this case Doulamis could allege two

distinct wrongs -- a claim for unfair labor practices and a claim for
sex discrimination. Characterizing Doulamis' latter claim as artful
pleading assumes away the difficult legal question raised by
Doulamis' case and squarely presented in the briefs: whether a sex
discrimination claim based on state law is preempted if it arises out
of a course of events that also may give rise to an unfair labor
practice charge.

The Supreme Court in Sears, Roebuck & Co. v. San Diego
County District Council of Carpenters, 436 U.S. 180 (1978), held
that even if a case may come within the scope of the Garmon
preemption doctrine when applied in a "mechanical fashion," id. at
188, there is still no preemption over conduct arguably prohibited
by the NLRA unless the controversy before the state court is

identical to the dispute that could have been presented under the

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NLRB. Id. at 197.8 Doulamis' MCAD claim is not identical to that
which could have been heard by the NLRB.
To make out her claim on her chapter 151B action
Doulamis needs to show (1) a prima facie case of discrimination
and (2) "either that the employer's articulated reasons are a pretext

or by direct evidence that the actual motivation was

* At issue in Sears was conduct that could be analyzed in two distinct ways.

The conduct was both "arguably protected” and "arguably prohibited” by the
NLRA. The Court drew a distinction between those two categories of conduct
(although in that case, the same conduct happened to qualify as both) and
imposed two distinct lines of analysis. If the activity at issue is "arguably
protected,” a finding of preemption is required where an aggrieved party has a
reasonable opportunity of invoking the NLRB jurisdiction or of inducing his
adversary to do so. Jd. at 207. If an activity is "arguably prohibited,” state
jurisdiction is preempted only if the issues presented to the state court are
identical to those that could be presented to the NLRB. The latter rubric leaves
much more room for state regulation. Id. at 200. Since sex discrimination is
clearly not protected by the NLRA, the conduct at issue in this case falls under
the more generous "arguably prohibited” rubric.

The majority appears to apply to this case criteria that Sears made applicable
to "arguably protected” conduct. For example, in determining that the
controversy here is identical to that which could have been put to the NLRB the
majority says, "[p]lainly this is not a case where the NLRB declined to exercise
its lawful jurisdiction over a labor controversy, or where the NLRB's actual
exercise of jurisdiction remains a matter of speculation.” Majority Op. at
typescript 12; see also Majority Op. at typescript 10 n.4. While this
consideration is important to cases involving “arguably protected” conduct, it is
not to "arguably prohibited” conduct.

47A
discrimination.” Blare, 419 Mass. at 444. The action before the
NLRB could not have turned on such an inquiry. Further, the
terms of the employer's settlement agreement with the NLRB do
not establish that Doulamis' claim before the MCAD is not a bona
fide sex discrimination claim.’

On the alleged facts of this case -- where Doulamis and
Burgess were engaged in the same activity (co-authoring the letter)
-- the MCAD will not have to decide as a matter of law whether
one of the two was engaged in union activity, while the other was
not. In other words, insofar as Doulamis and Burgess were doing

the same thing (yet only one was harassed), the question of

® There also seems to be an absence of record support for either the
proposition that the sex discrimination action was addressed before the NLRB
or the proposition that the settlement is “comprehensive.” The settlement
agreement, dated March 22, 1995, does not refer to alleged sex discrimination.
Also, according to its terms, the agreement applies "only [to] the allegations in
the above captioned cases and does not constitute a settlement of any other cases
or matters.” The “above captioned cases” are docket numbers "1-CA-31196,
31945(2), 32267, 32378, 32504, 32534, 32645, 32661." Only one of those
docket numbers, 1-CA-31196, filed December 9, 1993, involves Doulamis.
Apparently not included in the settlement are the other two claims that were,
according to Chaulk, made by Doulamis: docket numbers 1-CA-31157, filed
November 29, 1993 and 1-CA-31181-2, filed December 6, 1993.

48A
whether the activities were protected union activities cancels out of
the equation.
This is why the MCAD, when presented with Chaulk's
claim of preemption, said:

In the Complainant's presentation of her
discrimination case before this Commission, the
‘merits’ of the underlying labor dispute need not be
resolved. It is not necessary for this Commission to
find that the Respondent did, in fact, interfere with
the Complainant's efforts to organize union
activities; nor is it necessary for a determination to
be made regarding the Respondent's anti-union
animus, if one should exist. Rather, the
Complainant must show that she was treated
dissimilarly by the Respondent, and that the impetus
for that dissimilar treatment was due to her gender.
It is neither the role nor the goal of this Commission
to assess the catalyst of the Respondent's actions. It
is, however, this Commission's purpose to ensure
that such actions are not gender motivated.

In the present case, the Commission may decide the
issue in dispute without making a threshold
determination of whether the employer had
interfered with the employee's union activities. It
need only determine whether the treatment the
Complainant received, rightly or wrongly, was
different from that of her male counterparts and
motivated by her gender.

a

49A

It is in this context that the MCAD's interrogatory must be
understood. While it is true that the MCAD has asked Chaulk
questions relating to union organizing activities (and has perhaps
shown insufficient sensitivity to the possible jurisdictional
problem), it has done so for the purpose of determining factually
whether Doulamis was treated differently than men for doing the
same thing, and not to define legally what is or is not a union
activity under the NLRA. As the MCAD has recognized,
Doulamis’ sex discrimination claim exists independently of any
labor law claim. Chaulk's conduct was not wrongful only by virtue
of, or with reference to, the labor laws. Cf. Tamburelio v.
Comm-Tract Corporation, No. 95-1295, slip op. at 10-11 (1st Cir.
October 2. 1995) (RICO claim preempted under Garmon where
reviewing court would be forced to decide whether some portion of
defendants's conduct violated federal labor laws to determine

whether the plaintiff had established a RICO predicate act).'°

'© Significantly, particularly with respect to the Younger issues raised in
Part II, any issue concerning whether Doulamis was or was not engaged in
union activity will arise in this case, if at all, by way of Chaulk's potential

50A

The Sears inquiry suggests that the MCAD claim does not
fall within the scope of Garmon preemption. There is, however, an
even more compelling consideration that yields the same
conclusion. Of paramount importance in any preemption inquiry,
including one under Garmon, is congressional intent. See
Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747
(1985) (stating, in discussing NLRA preemption, including
Garmon preemption, that "as in any preemption analysis, [t]he
purpose of Congress is the ultimate touchstone") (internal
quotations omitted). If Congress has clearly evidenced its intent

one way or the other on the question of whether states may

defense to the action -- that Doulamis was treated differently than Burgess and
other male organizers because the male organizers were engaged in protected
union activity, while Doulamis was not. The Supreme Court has said in the
analogous context of §/ 301 preemption under the Labor Management Relations
Act that a defense of preemption is not even a sufficient basis for removal of the
action to federal court. See Caterpillar Inc. v. Williams, 482 U.S. 386, 399
(1987) ("[A] defendant cannot, merely by injecting a federal question into an
action that asserts what is plainly a state-law claim, transform the action into one
arising under federal law, thereby selecting the forum in which the claim shall
be litigated.”) (emphasis in original).

Oe eee dan ee

S1A
regulated an area of conduct, federal courts must follow it.
Congress has clearly evidenced its belief that state
anti-discrimination statutes do not unduly interfere with federal
labor policy.

Doulamis' claims not only come under chapter 151B but
also come within the scope of Title VII, 42 U.S.C.A. § 2000e to
e-17 (West 1994 & Supp. 1995), and are within the jurisdiction of
the Equal Employment Opportunity Commission ( "EEOC"). She
has in fact alleged a violation of Title VII and has indicated in her
MCAD complaint that she wishes to have her charges filed with
the EEOC.

The Supreme Court has said that the NLRA and Title VII
provide concurrent remedies. See Alexander v. Gardner-Denver
Co., 415 U.S. 36, 47-48 (1974); see also Beverly v. Lone Star Lead
Construction Corp., 437 F.2d 1136, 1140 n.22 (Sth Cir. 1971); cf.

Britt v. Grocers Supply Co., Inc., 978 F.2d 1441, 1447 (Sth Cir.
1992) ("[W]e have held that claims under Title VII are not

preempted by the NLRA. [Our] cases hold that a remedy is

52A

available under both the NLRA and Title VII and recognize
concurrent jurisdiction between Title VII and the NLRA."
(footnote omitted)), cert, denied, 113 S. Ct. 2929 (1993); Morgan
v. Massachusetts General Hosp., 901 F.2d 186, 194 (1st Cir. 1990)
("Clearly, if an employee has engaged in expression against
employer policies, even within the context of union activities,
which violate the Civil Rights Act, such as discriminatory
treatment of minorities or sexual harassment, and the employee
alleges discharge for that expression, section 704(a) [of the Civil
Rights Act] would be implicated for the narrow expression-related
claims.").!'

Thus, even accepting the majority's view that the factual
basis for the sex discrimination claim provides the same basis for
the unfair employment practice claim and that the sex

discrimination claim is identical to that before the NLRB,

'! It is clear also that jurisdiction is concurrent between the EEOC and
NLRB over claims that may fall within each statute. See Beverly, 437 F.2d at
1140, n.22.

S3A

Doulamis is still entitled to pursue her claim under Title VII before
the EEOC. See Alexander, 415 U.S. at 47-48. Since the conduct
prohibited by Title VII is nearly the same as that proscribed by
chapter 151B and Congress intended Title VII to provide a
concurrent remedy to the NLRA in areas of overlap, it would be
difficult to impute to Congress any hostility to the enforcement of
chapter 151B with respect to areas of potential overlap with the
NLRA.

There is, however, no need to rely on such a general
proposition in this case because Congress has affirmatively stated
in the language and through the structure of Title VII itself that
state anti-discrimination laws may provide a remedy that overlaps
with the NLRA. Not only did Congress affirmatively preserve the
operation of state anti-discrimination laws in Title VII, see 42
U.S.C.A. 4 2000e-7, but it made the state anti-discrimination
statutes an integral component of the Title VII enforcement
structure. See 42 U.S.C.A. 4 2000e-5S(c) ("section 706(c)").

Section 706(c) of Title VII explicitly provides that in states like

54A
Massachusetts (which have anti-discrimination statutes and an
agency charged with enforcing the state statute) jurisdiction in the
State administrative agency is exclusive for the first 60 days after a
claim is filed. See 42 U.S.C.A. 4 2000e-5(c).

The importance of state anti-discrimination statutes in the
enforcement scheme of Title VII was of major concern to Congress
in enacting Title VII. Isaac v. Harvard University, 769 F.2d 817,
822 (1st Cir. 1985) ("The issue reflected in section 706(c), the
relationship between federal and state remedies for employment
discrimination, received much attention throughout the legislative
process."). The legislative history shows that section 706(c) of
Title VII was enacted "to keep primary, exclusive jurisdiction in
the hands of the State commissions for a sufficient period of time
to let them work out their own problems at the local level.'" Id.
(quoting 110 Cong. Rec. 13087 (1964) (comments of Senator

Dirksen)).'? It was critical to the passage of Title VII that the

12

The EEOC has recognized the importance of allowing state
anti-discrimination statutes to operate in order to effectuate Congress’ purposes

for Title VII. See, ¢.g.,29 C.F.R. § 1601.13(a)(3)(1) (1995) ("In order to give

55A
federal government initially defer to the states in matters involving
discrimination. Moreover, Congress did not devise this
enforcement structure simply for administrative convenience (1.e.,
to avoid duplication of effort). As this court has previously said,
section 706(c) "was first, and foremost, a statute of deference."
Isaac, 769 F.2d at 824, see also id. at 824 n.9 (citing Oscar Mayer
& Co. v. Evans, 441 U.S. 750 (1979) and stating that "[t]he Court's
implicit message appears to be that deference, and not duplication,

was at the heart of section 706(c)").'> And Congress clearly had

full weight to the policy of section 706(c) of title VII, which affords State and
local fair employment practice ["FEP"] agencies that come within the provisions
of that section an opportunity to remedy alleged discrimination concurrently
regulated by title VII or the ADA and State or local law, the Commission adopts
the following procedures with respect to allegations of discrimination filed with
the Commission.").

3 Under the EEOC's regulations the MCAD is not only a designated FEP
agency, see 29 C.F.R. J 1601.74 (1995), but it is a certified designated FEP
agency, see § 1601.80 (1995), to which the EEOC gives a higher level of
deference than it otherwise does to designated FEPs. See 29 C.F.R. § 1601.75(a)

(1995).

56A
the NLRA in mind when it mandated this principle of deference to
the state anti-discrimination statutes. See Alexander, 415 U.S. at
48 n.9 (quoting 110 Cong. Rec. 7207 (1964) (where Senator
Joseph Clark, one of the sponsors of the bill, introduced an
interpretive memorandum specifically mentioning the relationship
between Title VII and the NLRA)).

If Congress believed that state anti-discrimination statutes
could not regulate coextensively with Title VII, then perhaps
preemption would be appropriate. But that is not the case.
Nothing in Title VII says that state anti-discrimination statutes
cannot apply coextensively with the Title VII. More significantly,
there clearly is nothing that says that the exclusive jurisdiction of
state administrative agencies under section 706(c) is limited to
cases under Title VII that do not overlap with the NLRA.

It is possible to draw at least two conclusions relevant to
congressional intent from Title VII. First, Congress affirmatively

intended that state anti-discrimination statutes would operate to

regulate conduct covered by Title VII to the same extent as Title

57A
VII itself and, thus, in areas that might also be covered by the
NLRA. Second, Congress could not have intended to eliminate the
operation of state anti-discrimination statutes over claims covered
by Title VII because that would actively impair the operation of
Title VII and frustrate the enforcement scheme Congress
envisioned. Not even ERISA preemption, which is arguable much
broader than Garmon preemption, see Metropolitan Life Ins. Co. v.
Massachusetts, 471 U.S. 724, 747 (1985) (distinguishing ERISA
preemption from NLRA preemption by stating that ERISA
preemption is statutorily mandated), allows preemption where it
would impair the operation of Title VII. See Shaw v. Delta
Airlines, Inc., 463 U.S. 85, 102 (1983) (where ERISA preemption
of a state anti-discrimination statute would impair the operation of
Title VII, there is no preemption). The reasonable conclusion is
that Congress intended to allow state anti-discrimination statutes to
overlap with the NLRA.

The Supreme Court's decision in Alexander v.
Gardner-Denver Co., 415 U.S. 36 (1974), reinforces this

58A
conclusion. In Alexander the Court was called upon to determine
the relationship between the federal courts and the
grievance-arbitration machinery of collective bargaining
agreements in the resolution and enforcement of an individual's
rights under Title VII. There an employee had a claim for
discrimination that was clearly covered by a collective bargaining
agreement.'* At issue was whether the employee's remedies
provided in the collective bargaining agreement (and subject to
arbitration) precluded a suit in federal court based on Title VII.'°
The Court unanimously held that it did not, saying:

[Legislative enactments in this area nave long
evinced a general intent to accord parallel or
overlapping remedies against discrimination. In the
Civil Rights Act of 1964, 42 U.S.C. 4 2000e et
seqg., Congress indicated that it considered the
policy against discrimination to be of the "highest

'* The right to bargain collectively is, of course, an NLRA conferred right.

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 n.8 (1985).

'S In Alexander, as here, there had been no waiver of statutory rights. See
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991).

ait lh ths cc ats

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S59A

priority." Newman v. Piggie Park Enterprises, [390
U.S. 400, 402 (1968)]. Consistent with this view,
Title VII provides for consideration of employment-
discrimination claims in several forums. See 42
U.S.C. 4 2000e-5(b) (1970 ed., Supp. IT) (EEOC),
42 U.S.C. § 2000e-5(c) (1970 ed., Supp. II) (state
and local agencies); 42 U.S.C. § 2000e-5(f) (1970
ed., Supp. II) (federal courts). And, in general,
submission of a claim to one forum does not
preclude a later submission to another. Moreover,
the legislative history of Title VII manifests a
congressional intent to allow an individual to pursue
independently his rights under both Title VII and

Alexander, 415 U.S. at 47-48 (emphasis supplied; footnotes
omitted); !° see also Brown v. Hotel and Restaurant Employees and

‘© The Court has applied a similar analysis in analogous situations. See
Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 412 (1988)
(suggesting that " {| 301 does not preempt state anti-discrimination laws, even
though a suit under these laws, like a suit alleging retaliatory discharge, requires
a state court to determine whether just cause existed to justify the discharge.”

(citation omitted)); ission v. Continental

Colorado Anti-Discrimination Commission
Air Lines Inc., 372 U.S. 714, 724 (1963) (rejecting a claim that a state
anti-discrimination law was preempted by the Railway Labor Act, which is
similar to the National Labor Relations Act).

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Bartenders Intern. Union, Local 54, 468 U.S. 491 (1984)."
National labor relations policy does not begin and end with
the NLRA. Title VII is as much a part of the network of labor
relations law as is the NLRA. Where Congress has so clearly

indicated that state anti-discrimination laws are to operate hand in

'7 At issue in Brown was whether {{ 86 and 93 of the New Jersey Casino
Control Act (which set qualifications for union officials) were preempted by §
7 of the NLRA. It was argued that the New Jersey statute was preempted
because it interfered with the right protected under {| 7 of employees to choose
their union officials. The Supreme Court held that

{| 7 did not completely preempt {ff 86 and 93 of the New Jersey statute. In the
Court's view, Congress had, through the passage of the Labor-Management
Reporting and Disclosure Act ("LMRDA"), disclaimed any intent to pre-empt
all state regulation which touched upon the specific right of employees to decide
which individuals will serve as officials of their bargaining representatives. The
LMRDA had imposed, in §] 504(a), federal qualification standards for union
representatives. Because the LMRDA affirmatively preserved the operation of

state laws in §] 603 and made { 504(a) itself dependent in part on state laws for
its enforcement, the Court held that state laws could impose their own similar
qualification standards on union officials. Jd. at 509.

Brown is highly instructive on the type of approach required for this
case. In Brown, Court focussed on the indicia of congressional intent that could
be found not just in the NLRA, but also in a parallel federal statute. The parallel
federal statute there specifically reserved a place for state regulation over the
conduct coming within its scope. While the LMRDA does not bear on this case,
Title VII does, and Title VII makes clear that Congress intended federal and
state regulation of discrimination to overlap. The differences between Brown
and this case do not affect the central instruction of Brown: that a federal court
must defer to congressional intent in making any preemption analysis, even one
involving the NLRA and even if it is expressed in another federal statute.

61A
hand with Title VII (indeed, for a limited period to the exclusion of
Title VII) it is difficult to conclude Congress intended preemption
under the circumstances here. In the words of Garmon, preemption
should not be found absent "compelling congressional direction."
Garmon, 359 U.S. at 244. Here, all the congressional direction iS
to the effect that state anti-discrimination statutes may supplement
federal laws, including federal labor laws, and Garmon preemption
is therefore inappropriate.

II.

Having stated my disagreement with the view that
Doulamis' sex discrimination claim is preempted by the NLRA, |
consider what perhaps may be a conceptually prior issue, the issue
of abstention. By seeking an injunction against the state
proceedings, Chaulk has effectively asked the federal court to
enjoin the state courts from deciding the Garmon issue. Thus, the
potentially dispositive question, apart from whether Garmon
preemption is appropriate, is whether this federal court should bar

the state fair employment agency from hearing this claim and so

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bar Massachusetts state courts from deciding the Garmon issue
themselves, or to the contrary, abstain from decision and allow the
state agency and courts to proceed. As with the preemption issue,
this issue is difficult, but on balance I would hold here under
Younger v. Harris, 401 U.S. 37 (1971), and its progeny, that
abstention is appropriate.

Younger prevents interference with pending state
administrative proceedings if they are of a judicial nature,
implicate an important state interest, and provide federal plaintiff
an adequate opportunity to litigate his constitutional claim. Ohio
Civil Rights Commission v. Dayton Christian Schools, Inc., 477
U.S. 619, 627 (1985). Although Chaulk claims that Younger
abstention is a principle of "discretionary deference," the Supreme
Court has stated that where a case falls within the Younger
parameters, a district court has no discretion to provide injunctive
relief and must abstain. See Colorado River Water Conservation
District v. United States, 424 U.S. 800, 816 n.22 (1976) ("Where a

case is properly within [the Younger] category of cases, there is no

63A

discretion to grant injunctive relief."); see also Sun Refining &
Marketing Co. v. Brennan, 921 F.2d 635, 639 (6th Cir. 1990)
("{U]nlike other forms of abstention, when a case is properly
within the Younger category of cases, there is no discretion on the
part of the federal court to grant injunctive relief.");
Senaca-Cayuga Tribe v. State ex rel. Thompson, 874 F.2d 709, 711
(10th Cir. 1989) (Younger abstention not discretionary once
conditions are met, absent extraordinary circumstances that render
a state court unable to give litigants a full and fair hearing on their
federal claims).'*

There is no question that the MCAD proceedings were
ongoing at the tine Chaulk's district court complaint was filed, see
Bettencourt v. Board of Registration in Medicine, 904 F.2d 772,
777 (1st Cir. 1990) (in determining interference "the proper point

of reference is the date plaintiff filed his federal complaint"), and

‘8 The majority quarrels with this proposition stating that the Colorado
River case was discussing criminal cases. Colorado River, however, was
discussing Younger abstention and Younger clearly applies to non-criminal state

administrative proceedings. See Dayton Christian Schools, 477 U.S. at 627 &
n.2.

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that the proceedings are judicial in nature. See Dayton Christian
Schools, 477 U.S. at 629 (finding Ohio Civil Rights Commission
proceedings sufficiently judicial in nature). The significant
questions here are whether the state interest in deciding sex
discrimination claims is important and whether there will be an
adequate opportunity for Chaulk to raise the Garmon preemption
question in the Massachusetts state forum.

The Supreme Court has said that remedying sex
discrimination is a sufficiently important state interest to trigger
Younger. See Dayton Christian Schools, 477 U.S. at 628 ("We
have no doubt that the elimination of prohibited sex discrimination
is a sufficiently important state interest to bring the present case
within the ambit of [Younger and its progeny]."). Although

Chaulk has suggested that there can be no significant state interest

in this case because it is preempted, such an argument, I believe, is
most likely foreclosed by New Orleans Public Service, Inc. v.

Council of City of New Orleans, 491 U.S. 350, 365 (1989)
("NOPSI"). In NOPSI the Court said that in determining the

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65A
importance of the state interest courts should "not look narrowly to
its interest in the outcome of the particular case -- which could
arguably be offset by a substantial federal interest in the opposite
outcome.” Jd. Courts rather must look to the "importance of the
generic proceedings to the State.” Id. (citing Dayton Christian
Schools). As Dayton Christian Schools made explicit,
Massachusetts has a legitimate and important state interest in
preventing sex discrimination. Thus the important state interest
prong of Younger is satisfied in this case.
Where there is an important state interest, the Supreme
Court has noted that a federal court should abstain unless state law
clearly bars the interposition of the federal plaintiff's constitutional
claim. Middlesex County Ethics Committee v. Garden State Bar
Ass'n, 457 U.S. 423, 432 (1982). Here, we have no reason to doubt
that the Massachusetts state courts will provide Chaulk with a full
and fair opportunity to raise the Garmon preemption question.

Chaulk raised the preemption argument before the MCAD and will

have a further opportunity to pursue it before the Massachusetts

66A
appellate courts. Dayton Christian Schools, 477 U.S. at 629 ("[I]t
is sufficient . . . that constitutional claims may be raised in
state-court judicial review of the administrative proceeding.")
(citation omitted).

If federal law barred the Massachusetts state courts form
deciding the Garmon preemption question, then the "adequate
opportunity" prong would not be met. Indeed such a proposition
appears to be at the heart of Chaulk's argument. Chaulk argues:
"[{W]here conduct is arguably protected or prohibited by the
NLRA, jurisdiction over that conduct is preempted in the labor
context and is exclusively federal. The determination of whether
(emphasis supplied).

But that proposition is untenable and inconsistent with the
Supreme Court's case law. Although state courts may be deprived
of jurisdiction to decide a case once it is preempted under Garmon,

they are not deprived of jurisdiction to decide whether a case is so

“ Pee eI ee Ee eS ey

67A

preempted. State courts have concurrent jurisdiction to decide
federal preemption issues. See Chick Kam Choo v. Exxon Corp.,
486 U.S. 140, 149-50 (1988) ("[W]Jhen a state proceeding presents
a federal issue, even a pre-emption issue, the proper course is to
seek resolution of that issue by the state court."); see also Turnbow

v. Pacific Mut. Life Ins. Co., 934 F.2d 1100, 1103 (9th Cir. 1991)

(no jurisdictional bar to state court deciding ERISA preemption
question); Sun Refining & Marketing Co. v. Brennan, 921 F.2d
635, 641 (6th Cir. 1990) (discussing possibility of Younger
abstention question in situation involving state action that was
arguably subject to the exclusive jurisdiction of Occupational
Safety and Health Administration ("OSHA") and stating, "it is
undisputed the concurrent jurisdiction exists in the Ohio state
courts to decide the federal pre-emption issue").

Garmon preemption is no exception to this principle. Cf.
International Longshoremen's Ass'n, AFL-CIO v. Davis, 476 U.S.
380, 393 (1985) ("when a claim of Garmon preemption is raised
[in state court], it must be considered and resolved by the state

68A
court" (emphasis supplied)). Because the Massachusetts state
courts have concurrent jurisdiction to decide the Garmon
preemption issue, Chaulk will have an adequate opportunity to
raise its Garmon preemption claim in the Massachusetts courts,
and thus the "adequate opportunity” prong of Younger is also met
here.

Perhaps recognizing that Younger applies to this case,
Chaulk has argued that preemption cases should be treated
differently than typical Younger abstention cases. It says that
"[t}]he real issue in this case in whether a doctrine of comity should
be applied in a Garmon preemption case." It argues that treating
this case under Younger "confuses two federal concepts which are
rooted in very different soi!"; and that while Younger "is
predicated upon discretionary deference by the federal government
to fundamental State interests," preemption "is mandatory and
arises under the Constitution, specifically, the Supremacy Clause."

According to Chaulk "[t]o elevate the equitable doctrine of

abstention over the Constitutional doctrine of preemption would

69A
truly be to elevate form over substance."
Whatever the merits of Chaulk's argument in theory, the
Supreme Court has apparently rejected it. In NOPSI the Court said
that preemption issues do not involve a greater federal interest than

other constitutional challenges:

There is no greater federal interest in enforcing the
supremacy of federal statutes than in enforcing the
supremacy of explicit constitutional guarantees, and
constitutional challenges to state action, no less than
pre-emption-based challenges, call into question the
legitimacy of the State's interest in its proceedings
reviewing or enforcing that action. Yet it is clear
that the mere assertion of a substantial
constitutional challenge to state action will not
alone compel the exercise of federal jurisdiction . . .

[P]reemption-based challenges merit a similar
focus ....

Id. at 365. Thus, courts are to analyze Younger abstention cases
involving preemption claims no differently than any other Younger

abstention case, see Sun Refining, 921 F.2d at 639, and even a

substantial claim of federal preemption is not sufficient to

70A
overcome Younger. See NOPSI, 491 U.S. at 365-66."

The exception to Younger that provides that abstention may
be improper where the plaintiff might suffer irreparable injury
absent equitable relief is not applicable here. A sufficient risk of
irreparable injury may exist where the challenged state statute is
"flagrantly and patently violative of express constitutional
prohibitions. .. ." Younger, 401 U.S. at 53-54. But chapter 151B
is hardly flagrantly unconstitutional and, given the complexities of
the preemption question, it is difficult to describe the MCAD's

actions as flagrantly or patently violative of the Garmon

'° A distinction exists between preemption involving a choice of forum and
preemption involving a choice of law. Cf. Violette v. Smith & Nephew
Dyonics, Inc., 62 F.3d 8, 11 (1st Cir. 1995) (choice of forum preemption is
jurisdictional and cannot be waived, while choice of law is not and may be
waived). The argument might be made that because Garmon involves choice of
forum preemption there is a greater federal interest to protect than in a case
involving choice of law and that, accordingly, abstention here might not be
appropriate here even if abstention for choice of law preemption would be.
NOPSI, however, says that the federal interest is not to be weighed against the
state interest. See Sun Refining, 921 F.2d at 641. Thus even if the federal
interest in Garmon preemption is weightier than in choice of law preemption
cases, that consideration does not affect the Younger inquiry; abstention is
appropriate as long as an important state interest is identified and the other
requirements are met. See Middlesex County, 457 U.S. at 431-32; Sun
Refining, 921 F.2d at 641.

ee ee ee ee en ey

TIA
preemption principle.

Further, although the Supreme Court in NOPS] left open
the question of whether a "facially conclusive" claim for
preemption might fall within the exception to Younger, see
NOPSI, 491 U.S. at 367, the preemption claim here is not facially
conclusive. For Chaulk's preemption claim to be facially
conclusive the federal courts must be able to determine the state
action is preempted "without further factual inquiry." Id. Chaulk
cannot meet this standard.

The MCAD has not sought directly to regulate unfair labor
practices nor has it questioned the authority of the NLRB to
adjudicate the unfair labor practices claim. Cf. NOPSI, 491 U.S. at
367. It has in fact said that "the issue of union interference is
properly left to the provinces of the NLRB.” Neither has it
challenged the non-admission settlement agreement that Chaulk

has entered, nor does it appear that the MCAD action will

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undermine that agreement.”” Even if there were reason to doubt
whether Doulamis has a bona fide claim for sex discrimination or
whether the MCAD should adjudicate the dispute, it would be
impossible "conclusively [to] say [the MCAD] is wrong without
further factual inquiry -- and what requires further factual inquiry
can hardly be deemed ‘flagrantly’ unlawful for purposes of a

threshold abstention determination." NOPSI, 491 U.S. at 367.7!

2° There is nothing in the record to show that the NLRB even considered
Doulamis’ claims for sex discrimination in the context of the unfair labor
practice charges. Moreover, the settlement agreement itself "does not preclude
persons from filing charges, the General Counsel from prosecuting complaints,
or the Board and the courts from finding violations with respect to matters
which precede the date of the approval of this Agreement regardless of whether
such matters are known to the General Counsel or are readily discoverable"
(emphasis supplied).

2! There may be situations in which the preemption claim could be facially
conclusive and abstention would not be appropriate. For example, this case
would be viewed quite differently had Doulamis alleged before the MCAD that
the discrimination Chaulk engaged in was simply based on her potential
affiliation in the union, as opposed to her gender. In such a case, the question
whether the claim was within the exclusive jurisdiction of the NLRA would not
turn on deciding whether her claim was a case of artful pleading. No more
facts would need be determined and under such circumstances abstention would
probably not be appropriate. Moreover, were the MCAD to assert jurisdiction
under such circumstances, there would be a good argument that the MCAD was
behaving in flagrant disregard of the Garmon preemption principle.

WR LESS

73A

Finally, the fact that the union filed a complaint with the
NLRB before Doulamis filed her complaint before the MCAD
does not resolve the matter.” To begin with, Chaulk never raised
such a theory as a basis to prevent abstention. Its initial brief, its
reply brief, and the supplemental letter memorandum requested by
the panel at oral argument are devoid of any argument that
abstention is inappropriate because the NLRB proceeding was
pending at the time of the MCAD complaint. It is therefore
waived. See Grella v. Salem Five Cent Savings Bank, 42 F.3d 26,
36 (1st Cir. 1994). Moreover, there does not appear to be case law
squarely supporting such a theory. Indeed, such a theory of
abstention appears to be at odds with the treatment of the issue in
at least one other circuit. See Sun Refining, 921 F.2d at 639-42
(abstention was appropriate despite claim that the state law action

violated the exclusive jurisdiction of OSHA and despite fact that

2 Although Doulamis' complaint before the MCAD was filed on December
1, 1993 the proceedings before the MCAD began on November 23, 1993 when
Doulamis underwent her intake interview.

74A
OSHA action had been pending and concluded months before the
state action was brought). As a matter of policy, the existence of a
NLRB action at the time a parallel state proceeding is filed should
not control the matter here. The NLRB, if it so chose, could have
sought an injunction against the state proceedings if it thought the
state proceedings conflicted with its exclusive jurisdiction. NLRB
v. Nash-Finch Co., 404 U.S. 138, 142-44 (1971).” The fact that
the NLRB did not so move speaks volumes.

I respectfully dissent.

2 Even the cases cited for the proposition that a federal court may enjoin a
state court's intrusion into a federal agency's exclusive jurisdiction do not stand
for such a broad proposition. In the only labor case cited, American Federation
of Labor v. Watson, 327 U.S. 582 (1946), the court specifically said that for
such an injunction to issue there must be an immediate threat of irreparable
injury, such as an "imminent threat to an entire system of collective bargaining.”
Id. at 595. No comparable threat exists here. In fact, in Watson the Court
explicitly said that the threat of multiple prosecution under the state law would
not be sufficient to justify an injunction. See id. The Court also abstained under
the doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496
(1941). See id. at 599.

75A

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

NO. 95-1249

CHAULK SERVICES, INC.
Plaintiff-Appellant,
v.

MASSACHUSETTS COMMISSION
AGAINST DISCRIMINATION, et al.,

Defendants-Appellees.

BEFORE
TORRUELLA, Chief Judge,
SELYA, CYR, BOUDIN, STAHL,
and LYNCH, Circuit Judges,
and Casellas*, District Judge.

ORDER OF THE COURT

Entered: January 18, 1996

76A

The panel of judges that rendered the decision in this case
having voted to deny the petition for rehearing and the suggestion
for the holding of a rehearing en banc having been carefully
considered by the judges of this Court in regular active service and
a majority of said judges not having voted to order that the appeal
be heard or reheard by the Court en banc,

It is ordered that the petition for rehearing and the

suggestion for rehearing en banc be denied.

By the Court:

Janice M. O’ Neil
Janice O’Neil, Acting Clerk

[cc: Messrs. Murphy, Menard, Lee, Ms. McClure]

*of the District of Puerto Rico, sitting by designation.

7T7A

29 U.S.C. § 158 (1994)

§ 158. Unfair labor practices
(a) Unfair labor practices by employer
It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section

157 of this title;

aa as eth Sok tan aan RY alle baton ee Tee Hen, Nt Oe I

(2) to dominate or interfere with the formation or

BOARS > xh

administration of any labor organization or

contribute financial or other support to it; Provided,

ite nO RBIS: DTS Aafia eA RS,

i That subject to rules and regulations made and
published by the Board pursuant to section 156 of
| this title, an employer shall not be prohibited from
permitting employees to confer with him during
working hours without loss of time or pay;

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of

78A
employment to encourage or discourage
membership in any labor organization: Provided,
That nothing in this subchapter, or in any other
statute of the United States, shall preclude an
employer from making an agreement with a labor
organization (not established, maintained, or
assisted by any action defined in this subsection as
an unfair labor practice) to require as a condition of
employment membership therein on or after the
thirtieth day following the beginning of such
employment or the effective date of such agreement,
whichever is the later, (I) if such labor organization
is the representative of the employees as provided in
section 159(a) of this title, in the appropriate
collective-bargaining unit covered by such
agreement when made, and (ii) unless following an

election held has provided in section 159(e) of this

title within one year preceding the effective date of

T9A
such agreement, the Board shall have certified that
at least a majority of the employees eligible to vote
in such election have voted to rescind the authority
of such labor organization to make such an
agreement: Provided further, That no employer
shall justify any discrimination against an employee
for nonmembership in a labor organization (A) if he
has reasonable grounds for believing that such
membership was not available to the employee on
the same terms and conditions generally applicable
to other members, or (B) if he has reasonable
grounds for believing that membership was denied
or terminated for reasons other than the failure of
the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of
acquiring or retaining membership;
(4) to discharge or otherwise discriminate against an

employee because he has filed charges or given

80A
testimony under this subchapter;
(5) to refuse to bargain collectively with the
representatives of his employees, subject to the
provisions of section 159(a) of this title.
(b) Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor organization

or its agents-
(1) to restrain or coerce (A) employees in the
exercise of the rights guaranteed in section 157 of
this title; Provided, That this paragraph shall not
impair the right of a labor organization to prescribe
its own rules with respect to the acquisition or
retention of membership therein; or (B) an employer
in the selection of his representatives for the
purposes of collective bargaining or the adjustment
of grievances;
(2) to cause or attempt to cause an employer to

discriminate against an employee in violation of

81A
subsection (a)(3) of this section or to discriminate
against an employee with respect to whom
membership in such organization has been denied or
terminated on some ground other than his failure to
tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or
retaining membership;
(3) to refuse to bargain collectively with an
employer, provided it is the representative of his
employees subject to the provision of section 159(a)
of this title; (4)(I) to engage in, or to induce or
encourage any individual employed by any person
engaged in commerce or in an industry affecting
commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture,
process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to

perform any services; or (ii) to threaten, coerce, or

82A
restrain any person engaged in commerce or in an
industry affecting commerce, where in either case
an object thereof is-
(A) forcing or requiring any employer or self-
employed person to join any labor or employer
organization or to enter into any agreement which is
prohibited by subsection (e) of this section;
(B) forcing or requiring any person to cease using,
selling, handling, transporting, or otherwise dealing
in the products of any other producer, processor, or
manufacturer, or to cease doing business with any
other person, or forcing or requiring any other
employer to recognize or bargain with a labor
organization as the representative of his employees
unless such labor organization has been certified as
the representative of such employees under the
provisions of section 159 of this title: Provided,

That nothing contained in this clause (B) shall be

83A
construed to make unlawful, where not otherwise
unlawful, any primary strike or primary picketing;
(C)forcing or requiring any employer to recognize
or bargain with a particular labor organization as the
representative of his employees if another labor
organization has been certified as the representative
of such employees under the provisions of section
159 of this title;
(D) forcing or requiring any employer to
assign particular work to employees in a particular
labor organization or in a particular trade, craft, or
class rather than to employees in another labor
organization or in another trade, craft, or class,
unless such employer is failing to conform to an
order or certification of the Board determining the
bargaining representative for employees performing
such work: Provided, That nothing contained in

this subsection shall be construed to make unlawful

84A
a refusal by any person to enter upon the premises
of any employer (other than his own employer), if
the employees of such employer are engaged in a
strike ratified or approved by a representative of
such employees whom such employer is required to
recognize under this subchapter: Provided further,
That for the purposes of this paragraph (4) only,
nothing contained in such paragraph shall be
construed to prohibit publicity, other than picketing,
for the purpose of truthfully advising the public,
including consumers and members of a labor
organization, that a product or products are
produced by an employer with whom the labor
organization has a primary dispute and are
distributed by another employer, as long as such
publicity does not have an effect of inducing any

individual employed by any person other than the

primary employer in the course of his employment

PL’ PREIS L550 VA
c aaa

85A
to refuse to pick up, deliver, or transport any goods,
or not to perform any services, at the establishment
of the employer engaged in such distribution;
(5) to require of employees covered by an
agreement authorized under subsection (a)(3) of this
section the payment, as a condition precedent to
becoming a member of such organization, of a fee
in an amount which the Board finds excessive or
discriminatory under all the circumstances. In
making such a finding, the Board shall consider,
among other relevant factors, the practices and
customs of labor organizations in the particular
industry, and the wages currently paid to the
employees affected;
(6) to cause or attempt to cause an employer to pay
or deliver or agree to pay or deliver any money or

other thing of value, in the nature of an exaction, for

services which are not performed or not to be

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performed; and
(7) to picket or cause to be picketed, or threaten to
picket or cause to be picketed, any employer where
an object thereof is forcing or requiring an employer
to recognize or bargain with a labor organization as
the representative of his employees, or forcing or
requiring the employees of an employer to accept or
select such labor organization as their collective
bargaining representative, unless such labor
organization is currently certified as the
representative of such employees:
(A) where the employer has lawfully recognized in
accordance with this subchapter any other labor
organization and a question concerning
representation may not appropriately be raised
under section 159(c) of this title,

(B) where within the preceding twelve months a

valid election under section 159(c) of this title has

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been conducted, or
(c) where such picketing has been conducted
without a petition under section 159(c) of this title
being filed within a reasonable period of time not to
exceed thirty days from the commencement of such
picketing; Provided, That when such a petition has
been filed the Board shall forthwith, without regard
to the provisions of section 159(c)(1) of this title or
the absence of a showing of a substantial interest on
the part of the labor organization, direct an election
in such unit as the Board finds to be appropriate and
shall certify the results thereof: Provided further,
That nothing in this subparagraph (c) shall be
construed to prohibit any picketing or other
publicity for the purpose of truthfully advising the
public (including consumers) that an employer does

not employ members of, or have a contract with, a

labor organization, unless an effect of such

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picketing is to induce any individual employed by

any other person in the course of his employment,

not to pick up, deliver or transport any goods or not

to perform any services.

Nothing in this paragraph (7) shall be construed to permit

any act which would otherwise be an unfair labor practice under
this subsection.

(c) Expression of views without threat of reprisal or force or
promise of benefit

The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this subchapter, if such
expression contains no threat of reprisal or force or promise of
benefit.

(d) Obligation to bargain collectively

For the purposes of this section, to bargain collectively is

the performance of the mutual obligation of the employer and the

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representative of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours, and other terms
and conditions of employment, or the negotiation of an agreement,
or any question arising thereunder, and the execution of a written
contract incorporating any agreement reached if requested by either
party, but such obligation does not compel either party to agree to a
proposal or require the making of a concession: Provided, That
where there is in effect a collective-bargaining contract covering
employees in an industry affecting commerce, the duty to bargain
collectively shall also mean that no party to such contract shall
terminate or modify such contract, unless the party desiring such
termination or modification-
(1) serves a written notice upon the other party to
the contract of the proposed termination or
modification sixty days prior to the expiration date
thereof, or in the event such contract contains no
expiration date, sixty days prior to the time it is

proposed to make such termination or modification;

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(2) offers to meet and confer with the other party for
the purpose of negotiating a new contract or a
contract containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation
Service within thirty days after such notice of the
existence of a dispute, and simultaneously therewith
notifies any State or Territorial agency established
to mediate and conciliate disputes within the State
or Territory where the dispute occurred, provided no
agreement has been reached by that time; and
(4) continues in full force and effect, without
resorting to strike or lock-out, all the terms and
conditions of the existing contract for a period of
sixty days after such notice is given or until the
expiration date of such contract, whichever occurs
later:

The duties imposed upon employers, employees,

and labor organizations by paragraphs (2) to (4) of

aR Re Sele PRE Te —,

E 3
r
i
;

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this subsection shall become inapplicable upon an
intervening certification of the Board, under which
the labor organization or individual, which is a party
to the contract, has been superseded as or ceased to
be representative of the employees subject to the
provisions of section 159(a) of this title, and the
duties so imposed shall not be construed as
requiring either party to discuss or agree to any
modification of the terms and conditions contained
in a contract for a fixed sila if such modification
is to become effective before such terms and
conditions can be reopened under the provisions of
the contract. Any employee who engages in a strike
within any notice period specified in this
subsection, or who engages in any strike within the
appropriate period specified in the subsection (g) of
this section, shall lose his status an a employee of

the employer engaged in the particular labor

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dispute, for the purposes of the sections 158, 159,
and 160 of this title, but such loss of status for such
employee shall terminate if and when he is
reemployed by such employer. Whenever the
collective bargaining involves employees of a
health care institution, the provisions of this
subsection shall be modified as follows:
(A) The notice of paragraph (1) of this subsection
shall be ninety days; the notice of paragraph (3) of
this subsection shall be sixty days; and the contract
period of paragraph (4) of this subsection shall be
ninety days.
(B) Where the bargaining is for an initial agreement
following certification or recognition, at least thirty
days’ notice of the existence of a dispute shall be
given by the labor organization to the agencies set

forth in paragraph (3) of this subsection.

(c) After notice is given to the Federal Mediation

phorus iat ee

93A
and Conciliation Service under either clause (A) or
(B) of this sentence, the Service shall promptly
communicate with the parties and use its best
efforts, by mediation and conciliation, to bring them
to agreement. The parties shall participate fully and
promptly in such meetings as may be undertaken by
the Service for the purpose of aiding in a settlement
of the dispute.

(e) Enforceability of contract or agreement to boycott any
other employer; exception

It shall be an unfair labor practice for any labor
organization and any employer to enter into any contract or
agreement, express or implied, whereby such employer ceases or
refrains or agrees to cease or refrain from handling, using, selling,
transporting or otherwise dealing in any of the products of any
other employer, or to cease doing business with any other person,

and any contract or agreement entered into heretofore or hereafter

containing such an agreement shall be to such extent unenforceable

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and void: Provided, That nothing in this subsection shall apply to
an agreement between a labor organization and an employer in the
construction industry relating to the contracting or subcontracting
of work to be done at the site of the construction, alteration,
painting, or repair of a building, structure, or other work; Provided
further, That for the purposes of this subsection and subsection
(b)(4)(B) of this section the terms "any employer", “any person
engaged in commerce or an industry affecting commerce,” and
"any person" when used in relation to the terms "any other

producer, processor, or manufacturer," "any other employer", or
"any other person" shall not include persons in the relation of a
jobber, manufacturer, contractor, or subcontractor working on the
goods or premises of the jobber or manufacturer or performing
parts of an integrated process of production in the apparel and
clothing industry: Provided further, That nothing in this subchapter

shall prohibit the enforcement of any agreement which is within

the foregoing exception.

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(f) Agreement covering employees in the building and
construction industry

It shall not be an unfair labor practice under subsections (a)
and (b) of this section for an employer engaged primarily in the
building and construction industry to make an agreement covering
employees engaged (or who, upon their employment, will be
engaged) in the building and construction industry with a labor
organization of which building and construction employees are
members (not established, maintained, or assisted by any action
defined in subsection (a) of this section as an unfair labor practice)
because (1) the majority status of such labor organization has not
been established under the provisions of section 159 of this title
prior to the making of such agreement, or (2) such agreement
requires as a condition of employment, membership in such labor
organization after the seventh day following the beginning of such
employment or the effective date of the agreement, whichever is
later, or (3) such agreement requires the employer to notify such

labor organization of opportunities for employment with such

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employer, or gives such labor organization an opportunity to refer
qualified applicants for such employment, or (4) such agreement
specifies minimum training or experience qualifications for
employment or provides for priority in opportunities for
emploeyment based upon length of service with such employer, in
the industry or in the particular geographical area: Provided, That
nothing in this subsection shall set aside the final proviso to
subsection (a)(3) of this section: Provided further, That any
agreement which would be invalid, but for clause (1) of this
subsection, shall not be a bar to a petition filed pursuant to section
159(c) or 159(e) of this title.

(g) Notification of intention to strike or picket any health care
institution

A labor organization before engaging in any strike,
picketing, or other concerted refusal to work at any health care
institution shall, not less than ten days prior to such action, notify

the institution in writing and the Federal Mediation and

Conciliation Service of that intention, except that in the case of

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bargaining for an initial agreement following certification or
recognition the notice required by this subsection shall not be
given until the expiration of the period specified in clause (B) of
the last sentence of subsection (d) of this section. The notice shall
state the date and time that such action will commence. The

notice, once given, may be extended by the written agreement of

both parties.

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Mass. G.L. c. 151B § 3 (1994 ed.)
Function, powers and duties of commission.
Section 3. The commission shall have the following functions,
powers and duties:
l. To establish and maintain its principal office in the
city of Boston and such other offices within the commonwealth as

it may deem necessary.

z. To meet and function at any place within the
commonwealth.
x To appoint such attorneys, clerks, and other

employees and agents as it may deem necessary, fix their
compensation within the limitations provided by law, and prescribe
their duties.

4. To obtain upon request and utilize the services of all
executive departments and agencies.

5. To adopt, promulgate, amend, and rescind rules and

regulations suitable to carry our the provisions of this chapter, and

the policies and practice of the commission in connection

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therewith.

6. To receive, investigate and pass upon complaints of
unlawful practices, as hereinafter defined, alleging discrimination
because of the race, color, religious creed, national origin, sex,
sexual orientation, which shall not include persons whose sexual
orientation involves minor children as the sex object, age, ancestry,
children, marital status, veteran status or membership in the armed
services, the receiving of public assistance, or handicap of any
person alleging to be a qualified handicapped person. The term
“sexual orientation” shall mean having an orientation for or being
identified as having an orientation for heterosexuality, bisexuality,
or homosexuality. The commission through its chairman may
appoint a single commissioner to hold public hearings, as
hereinafter provided, and to otherwise act on its behalf in
connection therewith; provided, however, that a person aggrieved
by the decision of said single commissioner may, within the

testimony of any person under oath, file an appeal for rehearing or

review by the commission.

100A

7. To hold hearings, subpoena witnesses, compel their
attendance, administer oaths, take the testimony of any person
under oath, and in connection therewith, to require the production
for examination of any books or papers relating to any matter
under investigation or in question before the commission. The
commission may make rules as to the issuance of subpoenas by
individual commissioners.

No person shall be excused from attending and testifying or
from producing books, records, correspondence, documents or
other evidence in obedience to the subpoena of the commission, on
the ground that the testimony or evidence required of him may tend
to incriminate him or subject him to a penalty or forfeiture; but no
individual shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter or thing
concerning which he is compelled, after having claimed his
privilege against self-incrimination, to testify or produce evidence,

except that such individual so testifying shall not be exempt from

prosecution and punishment for perjury committed in so testifying.

101A
8. To create such local or regional advisory boards as in its
judgment will aid in effectuating the purposes of this chapter.
Each advisory board shall consist of not less than eleven members.
To the extent reasonably possible the members of each board shall
include representatives of owners and brokers of residential
property; major lending and credit institutions; major private

employers; a local personnel or civil service administrator; local

post-secondary educational institutions; local labor organizations,
minority racial, ethnic and linguistic groups; women, elderly and
handicapped persons; and recipients of public assistance. The
members of such advisory boards shall serve without pay but shall
be reimbursed for their actual and necessary expenses. The
commission may provide technical and clerical assistance to the
advisory boards.

9. To issue such publication and such results of
investigations and research as in its judgment will tend to promote

good will and minimize or eliminate discrimination because of the

race, color, religious creed, national origin, sex, sexual orientation,

102A
which shall not include persons whose sexual orientation involves
minor children as the sex object, age or ancestry.

10. To render each year to the governor and to the general
court a full written report of its activities and of its
recommendations.

11. To adopt and official seal.

12. To give its opinion upon questions submitted to it by
any employer, employment agency or labor organization
concerning whether any existing or proposed requirement for
employment or for membership in such organization is a bona fide
occupational qualification. Copies of such opinions shall be
maintained in the files of the commission at its office and shall be
available during regular business hours for public inspection. An
opinion, or request therefor, given under this subsection shall not
operate to interfere with any proceeding under section five.

13. To adopt, promulgate, amend, and rescind rules and

regulations, jointly with the attorney general, for the purpose of

carrying out the provisions of subsection 13 of section four,

103A
including special regulations applicable to neighborhoods or areas
found by the commission, with the concurrence of the attorney
general, to be threatened with deterioration or instability associated
with the entry or prospective entry into such neighborhoods or
areas of a person or persons of a particular age, race, color,
religion, national or ethnic origin, or economic level.

14. To accept gifts, contributions or bequests of funds or
other aid from any source, whether public or private and from
federal, state or other governmental bodies for the purpose of
furthering the commissions mandate; provided, however, that all
amounts received pursuant to this paragraph shall be deposited

with the treasurer and made available to the commission for

expenditure for any purposes authorized by this chapter.

104A
Mass. G.L. c. 151B § 4 (1994 ed.)
Unlawful practices

Section 4. It shall be unlawful practice:

l. For an employer, by himself or his agent, because of
the race, color, religious creed, national origin, sex, sexual
Orientation, which shall not include persons whose sexual
orientation involves minor children as the sex object, or ancestry of
any individual to refuse to hire or employ or to bar or to discharge
from employment such individual or to discriminate against such
individual in compensation or in terms, conditions or privileges of
employment, unless based upon a bona fide occupational
qualification.

1A. _ It shall be unlawful discriminatory practice for an
employer to impose upon an individual as a condition of obtaining
or retaining employment any terms or conditions, compliance with
which would require such individual to violate, or forego the

practice of, his creed or religion as required by that creed or

religion including but not limited to the observance of any

105A
particular day or days or any portion thereof as a Sabbath or holy
day and the employer shall make reasonable accommodation to the
religious needs of such individual. No individual who has given
notice as hereinafter provided shall be required to remain at his
place of employment during any day or days or portion thereof
that, as a requirement of his religion, he observes as his Sabbath or
other holy day, including a reasonable time prior and subsequent
thereto for travel between his place of employment and his home.
provided, however, that any employee intending to be absent from
work when so required to his or her creed or religion shall notify
his or her employer not less than ten days in advance of each
absence, and that any such absence form work shall, wherever
practicable in the judgment of the employer, be made up by an
equivalent amount of time at some other mutually convenient time.
Nothing under this subsection shall be deemed to require an
employer to compensate an employee for such absence.

"Reasonable Accommodation", as used in this subsection shall

mean such accommodation to an employee's or prospective

106A

employee's religious observance or practice as shall not cause
undue hardship in the conduct of the employer's business. The
employee shall have the burden of proof as to the required practice
of his creed or religion. .

Undue hardship, as used herein, shall include the inability a
of an employer to provide services which are required by and in
compliance with all federal and state laws, including regulations or
tariffs promulgated or required by any regulatory agency having
jurisdiction over such services or where the health or safety of the
public would be unduly compromised by the absence of such
employee or employees, or where the employee's presence is
indispensable to the orderly transaction of business and his or her
work cannot be performed by another employee of substantially
similar qualifications during the period of absence, or where the
employee's presence is needed to alleviate an emergency situation.
The employer shall have the burden of proof to show undue
hardship. :

1B. Foran employer in the private sector, by himself or

107A

his agent, because of the age of any individual, to refuse to hire or
employ or to bar or to discharge from employment such individual,
or to discriminate against such individual in compensation or in
terms, conditions or privileges of employment, unless based upon a
bona fide occupational qualification.

iC. For the commonwealth or any of its political
subdivisions, by itself or its agent, because of the age of any
individual, to refuse to hire or employ or to bar or discharge from
employment such individual in compensation or in terms,
conditions we privileges of employment unless pursuant to any
other general or special law.

ya For a labor organization, because of the race, color,
religious creed, national origin, sex, sexual orientation, which shall
not include persons whose sexual orientation involves minor
children as the sex object, age, or ancestry of any individual, or
because of the handicap of any person alleging to be a qualified
handicapped person, to exclude from fuli membership rights or to

expel from its membership such individual or to discriminate in

108A
any way against any of its members or against any employer or any
individual employed by an employer unless based upon a bona fide
occupational qualification.

3. For any employer or employment agency to print or
circulate or cause to be printed or circulated any statement,
advertisement or publication, or to use any form of application for
employment or to make any inquiry or record in connection with
employment, which expresses, directly or indirectly, any
limitation, specification or discrimination as to the race, color,
religious creed, national origin, sex, sexual orientation, which shall
not include persons whose sexual orientation involves minor
children as the sex object, age or ancestry, or the handicap of a
qualified handicapped person or any intent to make such any
limitation, specification or discrimination, or to discriminate in any
way on the ground of race, color, religious creed, national origin,
sex, sexual orientation, age or ancestry or the handicap of a
qualified handicapped person, unless based upon a bona fide

occupational qualification.

109A

3A. For any person engaged in the insurance or bonding
business, or his agent, to make any inquiry or record of any person
seeking a bond or surety bond conditioned upon faithful
performance of his duties or to use any form of application in
connection with the furnishing of such bond, which seeks
information relative to the race, color, religious creed, national
origin, sex, sexual orientation, which shall not include persons
whose sexual orientation involves minor children as the sex object,
or ancestry of the person to be bonded.

3B. For an person whose business includes granting
mortgage loans or engaging in residential real estate-related
transactions to discriminate against any person in the granting of
any mortgage loan or in making available such a transaction, or in
the terms or conditions of such a loan or transaction, because of
race, color, religion, sex, sexual orientation which shall not include
persons whose sexual orientation involves minor children as the
sex object, children, national origin, ancestry, age or handicap.

Such transactions shall include, but not be limited to:

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(1) the making or purchasing of loans or the provision of
other financial assistance for purchasing, constructing, ‘mproving,
repairing, or maintaining a dwelling; or the making or purchasing
of loans or the provision of other financial assistance secured by
the residential real estate; or

(2) the selling, brokering, or appraising of residential real
estate.

In the case of age, the following shall not be an unlawful
practice:

(1) an inquiry of age for the purpose of determining a
pertinent element of credit worthiness;

(2) the use of an empirically derived credit system which
considers age; provided, however, that such system is based on
demonstrably and statistically sound data; and provided, further,
that such system does not assign a negative factor or score to any
applicant who has reached age sixty-two;

(3) the offering of credit life insurance or credit disability

insurance, in conjunction with any mortgage loan, to a limited age

LlIA
group;

(4) the failure or refusal to grant any mortgage loan to a
person who has not attained the age of majority;

(5) the failure or refusal to grant any mortgage loan the
duration of which exceeds the life expectancy of the applicant as
determined by the most recent Individual Annuity Mortality Table.

Nothing in this subsection prohibits a person engaged in the
business of furnishing appraisals of real property from taking into
consideration factors other than those hereinabove proscribed.

3C. For any person to deny another person access to, or
membership or participation in, a multiple listing service, real
estate brokers’ organi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1762%3A2. Public record. Not legal advice.