ROBERT S. WHALEN vs. NYNEX INFORMATION SERVICES, INC.

GILLERMAN, J. After a two-day bench trial, the judge ordered judgment for the defendant on the plaintiff's claim of handicap discrimination in violation G. L. c. 151B. [Note 1] The judge's comprehensive findings of fact and rulings of law were carefully drafted, and disposed of the issues presented for adjudication on the merits. In brief, the judge concluded that the plaintiff, having failed to prove that he was qualified for the available position, had not established that he was a qualified handicapped person within the meaning of G. L. c.

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151B, Section 4, (16) [Note 2] that the defendant had presented a legitimate, nondiscriminatory reason for the refusal to hire the plaintiff, namely, the plaintiff's failure to satisfy the job requirements; that the plaintiff had failed to prove that the stated reason for the refusal to hire was merely a pretext for discrimination, and that no discriminatory animus existed against the plaintiff. See generally Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 135 note 5 (1976), and Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 296-297 (1991), where the cases are collected. Indeed, the judge found that the four persons who evaluated the plaintiff had "no knowledge that Whalen may have had any handicap," that the plaintiff told no one at the defendant's Salem employment office that he had suffered a brain injury until after he was told he would not be hired; and that, after his rejection, the plaintiff told the receptionist at the Salem office that he was fully recovered from his previous injury.

These findings and conclusions were amply supported by the testimony. But all that is of no material consequence to this appeal, for here the central and only important issue is whether there was error in allowing the defendant's motion to strike the plaintiff's demand for a trial by jury. We hold that there was no error.

In spite of the fact that G. L. c. 151B was inserted almost fifty years ago, see St. 1946, c. 368, Section 4 (then entitled "Unlawful Discrimination Against Race, Color, Religious Creed,

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National Origin or Ancestry"), [Note 3] no Massachusetts appellate decision, it seems, has considered the question presented by this case: whether the right to trial by jury is preserved for those claiming violations of the statute (other than claims of age discrimination -- see note 3). [Note 4]

Article 15 of the Massachusetts Declaration of Rights [Note 5] preserves "the common law trial by jury in its indispensable characteristics as established and known at the time the Constitution was adopted" in 1780. Department of Rev. v. Jarvenpaa, 404 Mass. 177, 185-186 (1989), quoting from Opinion of the Justices, 237 Mass. 591, 596 (1921). See also Commonwealth v. Knowlton, 2 Mass. 530, 534-535 (1807). Oftentimes, because "new forms of actions and proceedings" are created by the Legislature, it may become necessary to consider whether "analogous civil proceedings existed at common law which required a jury trial." Commonwealth v. Mongardi, 26 Mass. App. Ct. 5, 8 (1988). But the fact that the claims asserted may be, in some measure, analogously connected to actions known at common law is not necessarily enough to establish the right to trial by jury. Nei v. Burley, 388 Mass. 307, 314 (1983). This is particularly so since here, as in Nei v. Burley (deciding that there is no right to trial by jury for actions cognizable under G. L. c. 93A), the Legislature "has created new substantive rights in which conduct heretofore lawful under common law and statutory law is now unlawful." Id. at 315. See also Department of Rev. v.

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Jarvenpaa, supra at 188 ("If a wholly new cause of action is created, a jury trial right does not attach to that claim"). So too, where the cause of action is for the violation of civil rights, a claim unknown to the common law, Commonwealth v. Guilfoyle, 402 Mass. 130, 135 (1988) (citing Batchelder v. Allied Stores Corp., 393 Mass. 819, 821 [1985]), it is clear that art. 15 is inapplicable. Id. at 135-136.

In enacting the provisions of c. 151B with regard to employment discrimination, the Legislature did indeed create a "wholly new cause of action." Competition was the cornerstone of the economic theory of the common law, for "it is through that competition, that the best interests of trade and industry are promoted." Commonwealth v. Hunt, 4 Met. 111 134 (1842). Essential to the magical and wondrous workings of competition was the right of the employer to the "free flow of labor," -- a right "to which every member of the community is entitled for the purpose of carrying on the business in which he or it has chosen to embark." Haverhill Strand Theatre, Inc. v. Gillen, 229 Mass. 413, 418 (1918). [Note 6] The free flow of labor required that employers have the "right . . . at all times to hire in the labor market, and to retain in their employment, such workmen as they might choose, unhampered by the interference of the union acting as a body through the instrumentality of a strike, or of a boycott, or of a black list . . . . [That right] is a primary right which has never been abrogated but remains unimpaired by our decisions." Folsom

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Engraving Co. v. McNeil, 235 Mass. 269, 277 (1920). [Note 7] See also Boylston Hous. Corp. v. O'Toole, 321 Mass. 538, 549 (1947). The Federal version of these ideas was not substantially different. See Lochner v. New York, 198 U.S. 45, 53 (1905) (liberty interest of the Fourteenth Amendment to the Federal Constitution protects "the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer," and State statute which limits those hours is repugnant to the Federal Constitution). [Note 8]

It is surely an understatement to say that the common law in 1780, when the Massachusetts Constitution was adopted, did not recognize the right of an individual to be considered for employment free of discrimination on account of his or her handicap. [Note 9] Compare Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 513 (1985), S.C., 397 Mass. 1004 (1986) (no common law remedy for discharge on account of age). It was not until the adoption of art. 114 of the Amendments to the Massachusetts Constitution in 1980 [Note 10] that a right to be free of handicap discrimination (to the extent therein provided)

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was established in our fundamental law. See also G. L. c. 93, Section 103 (prohibiting discrimination in contract and property transactions on the basis of handicap). [Note 11]

Finally, we emphasize, as did the court in Nei v. Burley, 388 Mass. at 315, the silence of the Legislature on the point at issue, see note 3, supra, and if "this conclusion does not reflect the mind of the Legislature, it is free to change the law and to grant a right to a trial by jury." Ibid.

While we conclude that there is no right to trial by jury regarding a handicap discrimination claim arising under c. 151B, nothing prevents a judge from submitting such a case to a jury, and it is not reversible error if he does so. Compare Service Publications, Inc. v. Goverman, 396 Mass. 567, 577-578 (1986) (permitting jury trials in c. 93A cases where there is no right to trial by jury).

Judgment affirmed.