X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Jill Carmichael doesn’t know when — or whether — she’ll collect the $300,000 the Massachusetts Supreme Judicial Court has ruled that a Fall River, Mass., law firm owes her. In June, the Supreme Judicial Court (SJC) affirmed that Wynn & Wynn discriminated against Carmichael because of her gender. “They’ve approached my attorney and said they don’t have the money to pay me,” she says. “They want to try to settle this. They’ve presented about 50 cents on the dollar.” Carmichael says this offer is unacceptable to her. If the compensatory issues are cloudy, other results of the action initiated eight years ago are clearer. The SJC decision in the case, written by Chief Justice Margaret H. Marshall, concluded that employers must shoulder a heavier load of the burden of proof in some discrimination cases. Carmichael now practices in a three-lawyer firm, Carmichael & Zajac in Taunton. Even though she’s uncertain about her award, she says she feels vindicated and satisfied. “There just came a point when I felt that I couldn’t walk away,” she says. “I decided to take a stand and I’m glad that I did.” THE BEGINNING That point occurred, she says, in 1992, after she’d passed the bar exam following her graduation from New England College of Law. She’d been with Wynn & Wynn since late 1989, when she was hired as a part-time clerk. During her interview, she says, she informed managing partner Charles Murray that she had a small child and was planning on more children. Two months later, she learned she was pregnant. Throughout her tenure at Wynn & Wynn, Carmichael attended law school. In the spring of 1991, as her graduation loomed, she asked Murray to consider her for an associate position. Murray said he would do so. That November, she left the firm to study for the bar, which she passed. The following April, the firm asked if she would come back as a clerk. By that time, however, Carmichael had learned that at a meeting when her associate candidacy had come up, a Rhode Island lawyer, Gary Vancini, who was not licensed to practice law in Massachusetts, had been hired instead. “Unbeknownst to me, during that meeting, [Murray] stated that I had applied for an attorney’s position, but that he felt that my priorities were elsewhere, with my family,” she says. “He said that I’d lied about being pregnant at the time that he’d hired me, and that had he known I was pregnant at the time he wouldn’t have done it. He said he was just going to tell me that there was no position available when in fact there was.” The hiring of Vancini added to an already uncomfortable work experience, she says, because she was sexually harassed on “a daily or semi-daily basis.” SEEING HER SIDE After she filed a discrimination complaint, a Massachusetts Commission Against Discrimination hearing officer found that Carmichael failed to meet an amended filing deadline. The officer ordered Wynn & Wynn to pay $51,144 for lost wages and $50,000 for emotional distress. The firm appealed to the full commission, which affirmed the decision. Then the firm went to Superior Court, where the ruling was upheld in 1997. In December of that year, in Lavelle v. MCAD, the SJC determined that respondents in discrimination cases have the same rights to jury trials after MCAD decisions as complainants, prompting Wynn & Wynn to file a motion for a new trial. When the firm’s motion was denied, the SJC took up the case on its initiative. The SJC found the law firm’s argument for retroactive application insufficient. It also found that the firm was wrong to claim that Carmichael had failed to prove that the reason she was not hired was based on discrimination. The SJC said it was a “mixed motive” case, meaning one in which an employer has several motives for making an employment decision. While one of them may be illegitimate, like sex discrimination, the demonstration of a legitimate reason does not erase the influence of the illegitimate one. The SJC ruled that since Carmichael had successfully met the “mixed motive” threshold, the burden shifted to the defendant to prove that, even if the plaintiff’s documented evidence is not taken into consideration, the same decision would have been reached. The SJC found Wynn & Wynn failed to meet that burden. TIME FOR REFLECTION Now, Carmichael is reflective about the ordeal. “It’s very difficult for me to put into words the emotion of what they had done to me,” she says. “I was very young; I was na�ve. I couldn’t believe people would ever treat me like that. It taught me a lot about being a victim.” She says she still has nightmares about her experience at Wynn & Wynn. But the experience, she’s quick to say, is in the past. These days, Carmichael’s law practice is doing well, she says. “I’m doing a lot of guess what? Employment law,” she says, laughing. “I wonder why.” She and her partner added a third lawyer, her husband, David Fleury in 1996, and plan to add a fourth soon. Meanwhile, she now has four children, with a fifth due next March.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.