Yes. In June 2024 the Appeals Court held that a business open to the public can be held responsible, under the doctrine of respondeat superior, when an employee doing the job discriminates against a customer because of race. At this early stage, the court let the customer’s claims against the business go forward under the public accommodation law, the consumer protection law and the Massachusetts Civil Rights Act. This is a published decision of the Appeals Court and is binding statewide.
What happened
The case was decided on the customer’s complaint, so the facts are his allegations. In October 2021 the customer, who is Black, ordered food at a Dunkin’ restaurant in Worcester. The cook ignored his order for fifteen minutes while he stood waiting, despite reminders from two coworkers, then threw the food at him and, when he objected, called him a racial slur. He complained to the corporate office. A company officer called him back, asked him to identify the cook, and told him not to worry about being a “snitch.” An owner later offered him a beer and a gift card, which he declined. He sued the company that allegedly owned the restaurant, seven related companies and the two individuals. A Superior Court judge dismissed the whole case, ruling that the cook’s conduct could not have been meant to serve her employer.
What the court decided
In Pettiford v. Branded Management Group, LLC, 104 Mass. App. Ct. 287 (2024), the Appeals Court vacated the dismissal in part.
Employers answer for employees under the public accommodation law. G.L. c. 272, § 98, forbids any distinction, discrimination or restriction on account of race in a place of public accommodation, and declares equal access a civil right. No court had decided whether an employer is liable under § 98 for its employee’s acts. The Appeals Court held it is, if the employee acted within the scope of employment, because the claim is tort-like and the law targets how businesses treat the public.
Scope of employment. The court applied a three-part test: whether the conduct is the kind of work the employee was hired to do, whether it happened within the time and place of the job, and whether it was motivated at least in part by a purpose to serve the employer. The first two were plainly met. On the third, the cook did finish the order, so her conduct plausibly served the employer even if she acted in a discriminatory way. The court also said it was wrong to look only at the cook. Other employees knew the customer was not being served, and no one stepped in.
Consumer protection. The claim under G.L. c. 93A, § 9, also survived. Racial harassment in the course of doing business can be immoral, unethical or oppressive conduct under c. 93A. Ellis v. Safety Ins. Co., 41 Mass. App. Ct. 630 (1996).
Civil Rights Act. A claim under G.L. c. 12, §§ 11H-11I, requires threats, intimidation or coercion. The court called employer liability for coercive acts like the slur a harder question, because outrageous conduct can suggest an employee is not acting for the employer. Still, at this early stage the claim survived. The court expressed no view on the merits.
Individuals and related companies. The claims against the officer and the owner failed. Asking the customer to identify the cook was not a separate violation, there was no adverse action to support retaliation, and the offer of a beer and gift card supported no claim. The complaint’s thin allegations against the seven related companies were not enough. But facts the customer raised later, including that the cook was employed by a different related company, might support a joint employer theory. Commodore v. Genesis Health Ventures, Inc., 63 Mass. App. Ct. 57 (2005). The customer may seek to amend his complaint.
What this means for you
If a store, restaurant or other business treats you differently because of your race, the business itself can be responsible, not only the employee. Courts look at the whole picture, including coworkers and supervisors who stood by.
Know who owns the place. Franchise locations are often run through several related companies. Your claim may depend on showing which company employs the workers and which controls the location.
Make every argument on appeal. The customer’s emotional distress claims were lost because his brief did not argue them.
What to do now
- Write down the date, time, location, what was said and done, and the names or descriptions of employees present.
- Keep your receipt or order number, and note any security cameras.
- Report the incident to the business in writing and keep copies of any replies.
- Consider a complaint with the MCAD, which has enforced the public accommodation law against businesses for their employees’ conduct.
- Talk to a lawyer about which companies own and operate the location.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Deadlines for discrimination and employment claims can be short.
