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Attorneys for the prominent Boston-based law firm Wynn & Wynn describe themselves as “lawyers who fight for you.” Over the past four years, however, the lawyers have been fighting a losing battle to absolve their firm of sex discrimination charges for failing to promote a law clerk to an associate position because she was a woman. Their crusade ended Tuesday when the Supreme Judicial Court of Massachusetts upheld the findings of the Massachusetts Commission Against Discrimination. The court’s decision came as welcome news to Jerrold S. Levinsky, an MCAD staff attorney who handled the case on appeal. “We are very pleased with the decision of the court,” he said. According to the decision written by Chief Justice Margaret Marshall, Charles Murray, the managing partner of Wynn & Wynn’s Fall River office, had expressed concern during an office meeting that law clerk Jill Carmichael’s priorities lay more with raising a family than practicing law. Additionally, several attorneys testified that Murray said he never would have hired Carmichael as a law clerk if he had known she was pregnant. Further, he told the attorneys he was going to inform Carmichael there were no openings for associates at the firm. After being informed that no associate positions were available, Carmichael resumed her job as a law clerk. When a new associate was hired three months later, she decided to leave the firm. Some months after she left Wynn & Wynn, Carmichael learned of Murray’s remarks from two attorneys who were present at the meeting. The MCAD found Wynn & Wynn had engaged in discriminatory practices by failing to hire Carmichael as an associate. Wynn & Wynn filed four successive appeals and was unsuccessful each time. After exhausting all appeals before the commission, the law firm twice turned to the Bristol County Superior Court. The second appeal unsuccessfully requested that the case be tried before a jury. The Supreme Judicial Court, acting sua sponte, transferred the case to itself after Wynn & Wynn appealed it to the Appeals Court. “This is the fifth time she has been vindicated,” said Carmichael’s attorney, Judith Ashton of the law firm Davis, Malm & D’Agostine in Boston. “This case took inordinately long because Wynn & Wynn would not take no for an answer.” CLARIFYING ‘MIXED MOTIVES’ Ashton, who has specialized in discrimination cases for 26 years, said this case would help clarify the burden of proof in what are known as “mixed-motive” discrimination cases. Mixed-motive cases are discrimination cases where the illegal motives for discrimination are offset by legitimate reasons to engage in what might be considered discriminatory activity. “There was a question in Massachusetts about who had the burden of proof once the plaintiff proved a prima facie case,” she said. “This holding clarifies the fact that, in a mixed motive case, the employer has the burden of proving that its legitimate decision, standing alone, would be enough to justify that action.” Carmichael, who left Wynn & Wynn in 1991, has gone on to become a partner at Carmichael & Zajac, a general practice firm in Bristol County. She was in this week but could not be reached for comment. Attorneys for Wynn & Wynn were unavailable for comment.

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