Discrimination Cases

MUSKOVITZ v LUBBERS Docket No. 111122. Submitted November 14, 1989, at Grand Rapids. Decided March 5, 1990. Leave to appeal applied for. The Art and Design Department of Grand Valley State University uses confidential peer reviews, written by faculty members of the department and submitted to the dean for consideration, in the annual salary review process. Once the dean has reviewed the faculty recommendations, he submits his own salary recommendation for each faculty member to the provost, who makes the final decisions on merit salary raises. In April, 1987, seven faculty members in the Art and Design Department submitted salary recommendations concerning Roslyn Muskovitz, a professor in the department who has been on the faculty since 1972. On the basis of the four recommendations he considered, the dean recommended a two percent salary increase for Muskovitz for the 1987-88 academic year. The two percent increase, which indicated a less than satisfactory performance, was approved by the provost. The dean then met with Muskovitz to explain the reasons for the two percent increase and to suggest ways to improve her performance. Muskovitz attempted to appeal the decision internally, in accordance with the university grievance procedure, and also filed a charge against the university with the Michigan Department of Civil Rights, alleging age discrimination. She requested copies of any and all documentation utilized by the university in arriving at its "less than satisfactory” salary decision, pursuant to the Employee Right to Know Act. The university provided Muskovitz with the verbatim comments of the four evaluations considered by the dean in a typed and reordered format, with the names deleted. Muskovitz filed suit against Arend D. Lubbers, President of Grand Valley State University, and the university in Muskegon Circuit Court requesting that copies of the actual peer reviews be provided without deleting the names. She also requested the written comments from the department chairperson ballots, which, according to plaintiff, were also used by the dean in arriving at her salary. Plaintiff alleged that the comments and other relevant materials constituted personnel records as defined by the Employee Right to Know Act and were therefore accessible to her. Plaintiff claimed that her ability to appeal the unfair salary decision was greatly hindered because the comments were scrambled and that the reviews lost their meaning as a result of the manner in which the university reordered the material. The university claimed that it had complied with the act and that, if it had not complied, it was exempt for constitutional and other reasons. The court, James M. Graves, Jr., J., granted partial summary judgment in favor of defendants, finding that the identities of plaintiff’s peer evaluators were protected from disclosure on three grounds: (1) the constitutional autonomy provided to Michigan universities in their educational sphere, (2) the "references” exemption to the Employee Right to Know Act, and (3) because of an academic privilege. Defendants were ordered to supply salary recommendations and narrative comments in a typewritten reordered format with the names of the evaluators removed. The court also ruled that the eight department chair ballots were completely exempt from disclosure under the "staff planning” exemption found in the act, but, because the university had previously agreed to provide the comments from the ballots, the university had to provide those comments. The court also found exempt as a staff planning document the letter from the dean to the provost recommending the two percent raise. Plaintiff appealed. References Am Jur 2d, Colleges and Universities § 11. See the Index to Annotations under Colleges and Universities; Privileged and Confidential Matters. The Court of Appeals held: 1. The dean’s letter to the provost setting forth salary increase recommendations is plainly exempted from disclosure by the act as a staff planning document since it sets forth recommended increases for every member of the department. The same is true of the chairperson ballots. 2. The confidential peer evaluations are exempt from disclosure as "employee references supplied to an employer” under the act to the extent that the form of disclosure of such evaluations would also reveal the identity of the person making the reference. The trial court’s decision to prevent identification of the makers of the references while still allowing discovery of the substance of those references is the most reasonable construction possible of the statute. Affirmed. MIarilyn Kelly, J., concurred in the result but wrote separately to state her disagreement with the majority’s statement that the university’s peer review system is dependent on strict confidentiality and that meaningful participation of the faculty would be chilled without it. 1. Master and Servant — Salary Increases — Peer Review Evaluations — Employee Right to Know Act. A letter from a dean of a university to the university’s provost setting forth salary increase recommendations for faculty members of the dean’s department is exempted from disclosure under the Employee Right to Know Act as a "staff planning” document if it sets forth recommended increases for every member of that department, and the same is true for department chairperson ballots containing the names of the candidates and a section for comments where the ballots are also used to arrive at a salary determination (MCL 423.501[2][c][ii]; MSA 17.62[l][2][c][ii]). 2. Master and Servant — Peer Review Evaluations — Employee Right to Know Act. Confidential peer evaluations are exempt from disclosure as "employee references supplied to an employer” under the Employee Right to Know Act to the extent that the form of disclosure of such evaluations would also reveal the identity of the person making the reference; where possible, discovery of the substance of the references should be allowed as long as identification of the makers of the references is prevented (MCL 423.501[2][c][i]; MSA 17.62[l][2][c][i]). Seymour L. Muskovitz, for plaintiff. Vamum, Riddering, Schmidt & Howlett (by Thomas J. Barnes and Donald P Lawless), for defendants. Before: Cynar, P.J., and Marilyn Kelly and T. G. Kavanagh, JJ. Former Supreme Court justice, sitting on the Court of Appeals by assignment. Cynar, P.J. Plaintiff Rosalyn Muskovitz, a professor at defendant Grand Valley State University, appeals as of right from an August 1, 1988, final order of the circuit court granting summary disposition in favor of defendants on her complaint brought pursuant to the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq. Plaintiff seeks copies of confidential peer evaluations and a letter from the dean to the provost regarding faculty merit salary increases. We affirm. Plaintiff is currently an associate professor at Grand Valley State University in the Art and Design Department, a division of Arts and Humanities, and has been on the faculty since 1972. As part of a reorganization of the university in September, 1982, it became part of the policy and practice of plaintiffs department within the university for confidential peer reviews to be written by faculty members and submitted to the dean for consideration in the annual salary review process. According to the policy, once the dean has reviewed the faculty recommendations, he then submits his own salary recommendation for each faculty member to the provost. The dean is not constrained regarding what weight, if any, is to be given the peer reviews. The final decision on merit salary raises is made by the provost. In April, 1987, seven faculty members in the Department of Art and Design submitted salary recommendations concerning plaintiff. Three evaluations were not considered by the dean, two because they were untimely and one because it simply recommended an average increase for everyone in the department, without supporting comments. On April 14, 1987, the dean made his salary recommendation to Provost Niemeyer for salary increases for all of the department personnel, including a two percent salary increase recommendation for plaintiff. Accepting the dean’s recommendation, the provost approved a two percent increase for plaintiff for the 1987-88 academic year, which indicated a less than satisfactory performance. The dean then met with plaintiff to explain the reasons for her two percent increase and to suggest ways for her to improve her performance. Plaintiff attempted to appeal the decision internally, in accordance with the university grievance procedure. Plaintiff also filed a charge against the university with the Michigan Department of Civil Rights, alleging age discrimination. In order to pursue these appeals, plaintiff requested copies of any and all documentation utilized by the university in arriving at its "less than satisfactory” salary decision, pursuant to the Employee Right to Know Act. In response, the university provided plaintiff with the verbatim comments of the four evaluations considered by the dean in a typed and reordered format, with the names deleted. The remaining three evaluations were not furnished because the dean had not considered them in his deliberations. Plaintiff then instituted an action in circuit court under the act, requesting that copies of the actual peer reviews be provided without deletion of the names. She also requested the written comments from the department chairperson ballots, which, according to plaintiff, were also used by the dean in arriving at her salary. The ballots were distributed in April, 1987, for the faculty in the Department of Art and Design to choose a chairperson for the 1987-88 academic year. The ballots contained the names of the candidates as well as a section for comments. Plaintiff alleged that the comments from the remainder of the confidential peer reviews and the chairperson ballots and other relevant materials constituted "personnel records” as defined by the act and were therefore accessible to her. Plaintiff also claimed that, because the comments on the reviews were scrambled, the reviews lost their meaning and her ability to appeal the unfair salary decision was greatly hindered. The university responded by claiming that it had complied with the act and that, if it had not complied, it was exempt for constitutional and other reasons. It was agreed between the parties that there were no genuine issues of material fact and that the case could be decided by motions for summary disposition. Accordingly, the parties submitted a stipulation of facts and respective motions for summary disposition. Plaintiff moved for summary disposition pursuant to MCR 2.116(A) and defendants moved for summary disposition pursuant to MCR 2.1116(C)(8) and (10). In an opinion dated May 12, 1988, the court partially granted defendants’ motion for summary disposition, ruling that the identity of plaintiff’s peer evaluators was protected from disclosure on three grounds: (1) the constitutional autonomy provided to Michigan universities in their educational sphere, (2) the "references” exemption to the act, and (3) because of an academic privilege. The court ordered that plaintiff be supplied with the comments from all 1987 peer salary recommendations and the 1988 salary recommendations that had been conducted by that time, but disclosure was to be made in such a way as to assure that the identities of plaintiff’s peer evaluators remained absolutely unknown to plaintiff. The court further ordered that unsigned comments on the election ballots and the dean’s letter of recommendation to the provost be provided, if the dean’s letter dealt only with plaintiff. The university then filed a motion for clarification or reconsideration to receive further direction concerning the format of disclosure and the status of department chair ballots that plaintiff sought to obtain as well. Pursuant to this motion, the court reviewed, in camera, the actual peer salary recommendations along with copies of the department chair ballots and the April 14 letter from the dean to the provost. In a supplemental opinion, on June 28, 1988, the court determined that plaintiff could readily identify her peer evaluators if she was provided a verbatim, unsigned transcript of these comments. The court found that the content and style of the actual comments, if disclosed in sequence, would reveal the authors’ identities due to the small size of plaintiffs department. Defendants were ordered to supply salary recommendations and narrative comments in a typewritten reordered format with the names of the evaluators removed. Further, the court ruled that the eight department chair ballots were completely exempt from disclosure under the "staff planning” exemption found in the act. MCL 423.501(2)(c)(ii); MSA 17.62(l)(2)(c)(ii). However, because the university had previously agreed to provide the comments from the chairperson ballots, the court ruled that the university had to comply with its previous representation. Finally, the court found the dean’s letter exempt, as a "staff planning” document. The court issued its "final order” in this matter on August 1, 1988. Plaintiff argues here on appeal that the circuit court erred in denying her access to the confidential peer reviews and ballots in their original format and to the April 14 letter from the dean to the provost. We disagree. MCL 423.501(2)(c)(i); MSA 17.62(l)(2)(c)(i) provides: (2) As used in this act .... (c) "Personnel record” means a record kept by the employer that identifies the employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership, or other association who has a contractual agreement with the employer to keep or supply a personnel record as provided in this subdivision. A personnel record shall not include: (i) Employee references supplied to an employer if the identity of the person making the reference would be disclosed. [Emphasis added.] Subsection (2)(c)(ii) also excludes from disclosure: (ii) Materials relating to the employer’s staff planning with respect to more than 1 employee, including salary increases, management bonus plans, promotions, and job assignments. As often repeated: A fundamental rule of statutory construction is that the court is obligated to ascertain and give effect to the intention of the Legislature, and it is equally axiomatic that words are to be given their ordinary, normally accepted meaning. [Town & Country Dodge, Inc v Dep’t of Treasury, 420 Mich 226, 240; 362 NW2d 618 (1984), reh den 421 Mich 1202 (1985).] Furthermore, where the meaning of a statute is plain and unambiguous, judicial construction or interpretation is precluded. However, if judicial interpretation is required to determine legislative intent, statutory language should be given a reasonable construction considering the statute’s purpose and the object sought to be accomplished. Absurd or unreasonable consequences must be avoided. Joy Management Co v Detroit, 176 Mich App 722, 730-731; 440 NW2d 654 (1989); Bar Processing Corp v State Tax Comm, 171 Mich App 472, 477; 430 NW2d 753 (1988). Under subsection (2)(c)(ii), the April 14, 1988, letter from the dean to the provost setting forth salary increase recommendations is plainly exempted from disclosure as a "staff planning” document as it sets forth recommended increases for every member of plaintiffs department. The same can be said of the chairperson ballots as they also refer to faculty members other than plaintiff. Further, we hold that the confidential peer evaluations are exempt from disclosure as "[e]mployee references supplied to an employer,” under subsection (2)(c)(i), to the extent that the form of disclosure of such evaluations would also reveal "the identity of the person making the reference.” In reaching this conclusion, we are persuaded by the California Court of Appeals decision in Bd of Trustees of Leland Stanford Junior Univ v Superior Court of Santa Clara Co, 119 Cal App 3d 516; 174 Cal Rptr 160 (1981). In that case, the plaintiff professor sought to obtain the contents of his personnel, tenure and promotion files which included confidential peer evaluations. However, the court held that such evaluations fell within the "letters of reference” exemption to § 1198.5 of the California Labor Code, which provided: Every employer shall . . . upon the request of an employee, permit that employee to inspect such personnel files which are used or have been used to determine that employee’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action. . . . This section . . . shall not apply to letters of reference. [Emphasis added.] The court construed the exemption as applicable to all confidential communications concerning "qualifications for employment, promotion, additional compensation, or termination or other disciplinary action,” whether before or after an employee’s initial hiring by an employer. Leland Stanford, 119 Cal App 3d 528-532. Nevertheless, the Leland Stanford court found that the manifest purpose of the Labor Code section was only to protect the identity and privacy of those persons who supplied the confidential information, not the "contents” of the letters of reference. Therefore, given that California state courts "should impose partial limitations rather than outright denial of discovery,” the court concluded that a "reasonable” interpretation of the section at issue would allow disclosure of the substance of the evaluations where "appropriate deletions of identification of the sources” is provided for by the trial court. 119 Cal App 3d 532-533. Such an interpretation is all the more appropriate here where the language of the statutory section itself indicates that the sole concern of the Legislature is to prevent disclosure of "the identity of the person making the reference.” [Emphasis added.] MCL 423.501(2)(c)(i); MSA 17.62(l)(2)(c)(i). Balancing Michigan’s "liberal discovery” policy, see, e.g., Fitzpatrick v Secretary of State, 176 Mich App 615, 617; 440 NW2d 45 (1989), against the university’s constitutional autonomy in the operation of its education sphere, Const 1963, art 8, § 5; Regents of the Univ of Michigan v Employment Relations Comm, 389 Mich 96, 104; 204 NW2d 218 (1973), we find that the trial court’s decision to prevent identification of the makers of the references, yet still allow discovery of the substance of those references, is the most "reasonable” construction possible of subsection (2)(c)(i). In this way, plaintiff receives as much information as possible concerning the basis for the university’s salary decision without violating the legislative intent manifest in subsection (2)(c)(i) to protect the privacy of those making the evaluation. This interpretation of the statute also protects the integrity and effectiveness of the university’s peer evaluation system. Such a system is necessarily dependent on the maintenance of strict confidentiality without which meaningful participation of the faculty would be chilled. In reaching our decision in this matter, we have also considered the very recent opinion of the United States Supreme Court in Univ of Pennsylvania v Equal Employment Opportunity Comm, — US —; 110 S Ct 557; 107 L Ed 2d 571 (1990). In that case, the Supreme Court held that a university does not enjoy a special privilege, grounded in either policy considerations or the first amendment right of academic freedom, which would require the eeoc to demonstrate a particularized necessity of access, beyond a showing of mere relevance, before confidential peer review materials pertinent to char

Mary Jane Drinkwater vs. School Committee of Boston. Suffolk. December 4, 1989. February 26, 1990. Present: Liacos, C.J., Abrams, Nolan, O’Connor, & Greaney, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Prima facie case, Burden of proof, Employee, Race. School and School Committee, Appointment of personnel. Constitutional Law, Equal protection of laws. An affirmative action plan governing the hiring of administrative personnel by the school committee of Boston, which had been incorporated in a Federal court-ordered desegregation plan, did not violate G. L. c. 15IB by discriminating against nonmembers of minorities on the basis of their race, inasmuch as all candidates for employment were required to possess certain minimum qualifications, the hiring of nonminority applicants was not barred, and the requirement for affirmative action efforts was to continue in effect only until black employees comprised twenty-five percent of the school system’s administrative staff. [759-760] In an action by an unsuccessful nonminority candidate for a position as a staff attorney in the office of the general counsel of the Boston school committee, alleging that the school committee had violated G. L. c. 151B, § 4, by discriminating against her on the basis of her race, allowance of the school committee’s motion for summary judgment was error, where a genuine issue of material fact was presented with regard to the qualifications of the minority candidate who filled the staff attorney position under the school committee’s affirmative action plan, which provided for a racial preference when it was faced with “eligible, qualified black candidates.” [760-763] Civil action commenced in the Superior Court Department on May 20, 1986. The case was heard by John L. Murphy, Jr., J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Nance Lyons {Mary Jane Drinkwater with her) for the plaintiff. John S. Stadler, Special Assistant Corporation Counsel, for the defendant. Nolan, J. The plaintiff, Mary Jane Drinkwater, commenced this action in 1986 alleging that the school committee of Boston (school committee) discriminated against her on the basis of her race and then declined to hire her in retaliation for her complaints of discrimination. The Superior Court allowed the school committee’s motion for summary judgment and Drinkwater appeals from that ruling. We transferred the case to this court on our own motion. We reverse and remand the case to the Superior Court for further proceedings not inconsistent with this opinion. A party moving for summary judgment “must affirmatively show that there is no real issue of fact.” Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert, denied, 459 U.S. 970 (1982), quoting Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970). “The inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.” In our view the school committee has not met its burden of showing that the material facts are undisputed. This case has its origins in the decision of the United States District Court in Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass.), aff'd sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert, denied, 421 U.S. 963 (1975). In that case, the court determined that school committee authorities had engaged in purposeful racial discrimination. Morgan v. Hennigan, supra at 480. As part of a comprehensive remedy, the District Court ordered the desegregation of the administrative staff of the Boston public schools. The order incorporated an affirmative action plan submitted by the school committee in order to achieve compliance with the order. In June of 1984, the school committee announced that it was accepting applications for two positions in the office of its general counsel. The positions were listed as “Staff Attornev I” and “Staff Attorney II.” Drinkwater applied for both positions; she was hired for neither. Drinkwater, who is white, filed a racial discrimination complaint with the school committee’s office of equal opportunity (OEO), alleging that a minority candidate was chosen for one of the positions solely on the basis of race. Due to an unrelated problem, the school committee was forced to repost the two positions. Drinkwater reapplied for both; she received neither. Drinkwater contends that the school committee’s actions violated G. L. c. 15IB, § 4 (1988 ed.), by discriminating against her on the basis of her race and, with regard to her reapplication, in retaliating against her for filing a complaint with the OEO. In cases under c. 15IB, a complainant must show a prima facie case of discrimination, which then shifts the burden of production to the respondent to show a lawful reason for its action. See Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 137-138 (1976). In arguing that summary judgment was appropriate, the school committee contends that there is no dispute as to the lawful reason for its action: it was under the obligation, pursuant to a Federal court order, to desegregate. At the outset we reject any notion that Drinkwater is bound by a judgment of a Federal court in a case to which she was not a party. See Hansberry v. Lee, 311 U.S. 32, 40 (1940). See also Martin v. Wilks, 109 S. Ct. 2180 (1989) (white fire fighters alleging reverse discrimination not bound by consent decrees between city and black fire fighters). The real question is whether, and to what extent, an employer can rely on a court-ordered affirmative action program as a justification for a hiring decision involving race when sued under c. 15IB. A subsidiary but important question is whether the school committee properly applied the affirmative action program that it adopted. In Concerned Minority Educators of Worcester v. School Comm. of Worcester, 392 Mass. 184, 189-190 (1984), we stated that “[cjertainly a voluntary program for determining layoffs containing an affirmative action component overriding a seniority component, in whole or in part, would not violate State law . . . .” Thus, we have recognized that c. 15IB, although neutral in its terms, does not categorically prohibit the implementation of an affirmative action program. Indeed, we prefer to interpret c. 15IB in harmony with other statutes which appear to call for affirmative action programs. See G. L. c. 23A, § 44 (1988 ed.); G. L. c. 35, § 53A (1988 ed.). Having determined that c. 151B does not place a per s'e prohibition on affirmative action plans, we turn to the question whether the plan in this case is compatible with G. L. c. 151B. In determining whether particular race-conscious remedies violate the equal protection guarantee of the Fourteenth Amendment to the United States Constitution, the United States Supreme Court looks to the “necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.” United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality opinion). In the instant case the affirmative action plan is incorporated in a court-ordered desegregation plan. There can be no doubt of the necessity for race-conscious relief. The school committee’s plan requires the school system to “engage in affirmative efforts to recruit and retain minority applicants for employment until . . . Blacks constitute ... 25 % of the non-academic workforces.” The court order itself also requires affirmative efforts with regard to hiring blacks until blacks constitute 25% of the school system’s administrators. It is undisputed that blacks made up only 23.76% of the school system’s administrative staff at the time Drinkwater applied for the positions of Staff Attorney I and Staff Attorney II. The court order and the plan itself both required the school committee affirmatively to recruit blacks for attorney positions. Drinkwater’s main argument appears to center on the contention that the school committee’s plan unnecessarily trammels the interests of nonminority applicants. Under this plan race is not the only factor in the hiring process, since all the candidates must meet certain minimum qualifications. The plan does not create a bar to the hiring of white employees and, in fact, a white person was hired to fill one of the two positions. Moreover, the affirmative requirement that the school committee consider minority status is not permanent. Rather, that requirement will only last until blacks make up 25% of the administrative staff of the Boston public school system. We think the plan is both limited and flexibile rather than a rigid rule which unnecessarily trammels the rights of nonminorities. Even when an employer acts pursuant to an affirmative action plan, however, that employer may violate c. 15IB. When a plan is misapplied, the employer’s action may constitute illegal “reverse” discrimination. Drinkwater argues that the school committee misapplied the plan in this case. Drinkwater argues that the plan does not, or should not, apply to the office of the school committee’s general counsel. Drinkwater claims that there is a factual dispute as to whether the school committee attorneys are actually assistant corporation counsel of the city of Boston (to whom the court order does not apply). She relies on statements that the school committee’s general counsel, Mr. Michael Betcher, made in a deposition to the effect that school committee attorneys are “technically” special assistant corporation counsel. Betcher also stated, however, that the label of “special assistant” was indicative of the fact that the corporation counsel retained some jurisdiction over the school committee attorneys in matters of litigation. Other than with regard to the understanding concerning litigation, there was no separate written agreement between the corporation counsel and the school committee’s general counsel. Moreover, the school committee submitted evidence which showed that the attorneys in the general counsel’s office were hired and employed by the school committee. The attorney positions within the general counsel’s office were, organizationally, within the school department. Positions in the general counsel’s office were included in the annual reports on desegregation which the school committee submitted to the Federal court. These undisputed facts are enough to bring the staff attorneys within the ambit of the “nonacademic” workforce of the Boston public school department, to which both the plan and the court order apply. The fact that the staff attorneys may also be special assistant corporation counsel or that the corporation counsel may have some say in the hiring decisions is irrelevant. Drinkwater contends that the goal of having 25 % minorities should not apply because blacks do not make up 25 % of the relevant labor market (attorneys). The goal of having 25 % minority administrators applies, however, to all the administrative positions in the Boston public schools as a whole. As long as the total percentage of black administrators is less than 25%, the school committee must, in all its hiring efforts, affirmatively act to hire members of minorities. Although both the court order and the plan require that minorities be spread out in all the administrative departments, neither requires that each department actually have 25 % minority personnel. We see nothing wrong with a plan that looks to the administrative positions in the school system as a whole rather than pigeonholing each type of position in the system. Thus, the plan itself is valid. Even though the plan was properly applicable to the staff attorney positions, we agree with Drinkwater that there is a factual issue regarding the qualifications of the minority candidate who filed the Staff Attorney I position. The successful applicant’s qualifications are material because the Federal court order in this case did not require the blind appointment of members of minorities to administrative positions. Rather, it provided for a racial preference when the school committee was faced with “eligible, qualified black candidates.” The affirmative action plan explicitly stated that the goals it announced were not “rigid or inflexible quotas.” The plan only required the school committee to rely “in part” on the race of a candidate when it was “reasonably necessary” to do so. Thus, race is only a factor to be considered as between otherwise qualified applicants. The qualifications listed in the job posting including “[pjroficiency in education law, administrative law and civil litigation; knowledge of state and federal special education laws and regulations; analytic and writing skills; administrative ability; human relations skills.” Drinkwater asserts that the successful applicant had to meet all the qualifications. The school committee’s position, supported by deposition testimony, was that the qualifications were not intended to require experience in each of the areas listed, as long as an applicant was “substantially in compliance with the requirement that she exhibit some expertise in that area.” The reason offered by the school committee for its willingness to accept applicants without all of the qualifications listed was that it was prepared to consider applicants with “0 years” experience. In its answer to the complaint, the school committee averred that “the minority individual selected showed very strong potential, but had no significant special education experience.” Other facts tended to show that the successful applicant did have some experience in administrative law and civil litigation. Because the successful applicant met some, but not all, of the qualifications listed, there is a genuine issue whether the school committee complied with its affirmative action plan, which we have already determined is facially valid. See Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970). In support of her claim of retaliation, Drinkwater presented evidence which showed that the school committee’s general counsel was “angry that Ms. Drinkwater was accusing me of a violation of state and federal discrimination laws.” If Drinkwater should have received the Staff Attorney I position, even under the affirmative action plan as she argues, and the general counsel declined to recommend her when she reapplied because she had filed a complaint to that effect, then there may indeed have been illegal retaliation. The school committee, of course, contends that there was no retaliation. In any event, however, there is a genuine issue of material fact, as already noted. Therefore, it was error to allow the school committee’s motion for summary judgment. The judgment is reversed and the case is remanded to the Superior Court. So ordered. We do not reach the question whether affirmative action programs are permissible under the State Constitution’s Equal Rights Amendment (ERA). Art. 1 of the Massachusetts Declaration of Rights, as amended by art. 106 of the Amendments. See Attorney Gen. v. Massachusetts Interscholastic Athletic Ass’n, Inc., 378 Mass. 342, 357 (1979) (any justification for classification proscribed by ERA, even under affirmative action, should be weighed very carefully). Drinkwater relies primarily on Federal cases arising under Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment in her argument that the “reverse discrimination” in this case is illegal. Because her complaint only challenges the defendants’ actions under G. L. c. 15IB, § 4, we construe her argument as urging us to adopt standards under c. 151B similar to those utilized under Federal law. For the purposes of this case we assume, without deciding, that these standards apply under c. 151B. Drinkwater asks this court to take judicial notice of this fact. It is undisputed that the successful applicant failed the July, 1984, bar examination, and that one of the qualifications listed in the job posting was “current membership in Massachusetts and federal bars, or admission to bar membership by January, 1985.” This, however, creates no issue concerning the qualification of the successful applicant at the time she was hired, which is the time that we must consider in evaluating whether the school committee misapplied its facially valid affirmative action plan. As applied to 1984 law school graduates such as the successful applicant, then, we construe that requirement to be a condition subsequent to the employment, the nonoccurrence of which might subject the employee to discharge.

SCOTT D. BURGESS v. YOUR HOUSE OF RALEIGH, INC. No. 235PA89 (Filed 7 February 1990) 1. Rules of Civil Procedure § 12 (NCI3d)— motion to dismiss-failure to state claim for relief A complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim. Am Jur 2d, Pleading § 226. 2. Statutes § 5.1 |NCI3d)— statutory construction — intent of legislature Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning. But where a statute is ambiguous, judicial construction must be used to ascertain the legislative will. Am Jur 2d, Statutes §§ 145, 146, 194, 195. 3. Master and Servant § 7.5 (NCI3d)— Handicapped Persons Act —inapplicability to person infected with AIDS virus A person who is infected with the AIDS virus (HIV), but who is otherwise asymptomatic, is not entitled to employment protection under the provisions of the N. C. Handicapped Persons Act because (1) a person infected with HIV is not a “handicapped person” within the meaning of the Act in that he does not have a physical or mental impairment which limits a “major life activity” as that term is defined by N.C.G.S. § 168A-3(4), nor is he regarded as having such an impairment; (2) the legislature did not intend that the definition of “handicapped person” would include a person solely because he suffers from a communicable disease since such an interpretation would render meaningless the communicable disease exemption of N.C.G.S. § 168A-5(b)(3); and (3) subsequent legislative history indicates that the legislature did not intend to cover the subject of communicable diseases such as HIV when it enacted the Handicapped Persons Act. Am Jur 2d, Job Discrimination § 124. On discretionary review pursuant to N.C.G.S. § 7A-31(a) prior to a determination by the Court of Appeals of an order entered by Herring, J., at the 27 November 1988 Session of Superior Court, WAKE County, which granted defendant’s motion for dismissal pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Heard in the Supreme Court 13 November 1989. Erdman, Boggs & Harkins, by Harry H. Harkins, Jr., and Crisp, Davis, Schwentker, Page & Currin, by Lynn Fontana, for plaintiff-appellant. Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Richard T. Boyette, and Moore & Van Allen, by William D. Dannelly, for defendant-appellee. Tharrington, Smith & Hargrove, by Burton Craige, for North Carolina Civil Liberties Union Legal Foundation; and Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, by Julian D. Bobbitt, Jr. and Maureen Kelley O’Connor, for North Carolina Medical Society and American Medical Association, amici curiae. MEYER, Justice. We note from the outset that the issues raised in this case would, if the action had been commenced after the effective date of recent amendments to the North Carolina Communicable Disease Act, N.C.G.S. § 130A-148(h)-(j) (1989), be decided under that act. These provisions, which establish protections for those persons who test positive for the HIV virus, became effective 1 October 1989, subsequent to the filing of plaintiffs complaint and to entry of the order of the trial court granting defendant’s motion for dismissal. Thus, for purposes of this appeal, plaintiff’s rights must be determined under the law as it existed prior to the passage of the recent amendments to the Communicable Disease Act. Plaintiff was employed by defendant restaurant as a short-order cook. In November 1987, plaintiff tested positive for the Human Immunodeficiency Virus (HIV), which is the agent currently recognized to be responsible for the Acquired Immune Deficiency Syndrome (AIDS). This condition is referred to as being “seropositive” for the virus. Upon learning that plaintiff had tested positive for this virus, defendant discharged plaintiff from employment. It is undisputed that plaintiff was fired solely because he tested positive for HIV. Plaintiff brought suit against his former employer, alleging that his discharge from employment for this reason constituted a discriminatory practice under the provisions of the North Carolina Handicapped Persons Protection Act, N.C.G.S. § 168A-1 to -12 (1987) (Handicapped Persons Act), because plaintiff’s seropositive status enabled him to fit the act’s definition of a qualified handicapped person. In his prayer for relief, plaintiff sought injunctive relief, reinstatement to his former position, back pay, and attorney’s fees. Defendant answered, denying plaintiff’s assertion that infection with HIV constitutes a “handicap,” and further moved to dismiss plaintiff’s complaint under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure for failure to state a claim upon which relief could be granted. The trial court granted defendant’s motion, and plaintiff appealed to the Court of Appeals. On 8 June 1989, this Court ex mero motu allowed discretionary review prior to determination by the Court of Appeals. AIDS may be described as the final stage of complications of infection by the Human Immunodeficiency Virus. Once introduced into the body, the HIV virus attacks and changes the structure of white blood cells which are crucial in order for a person’s immune system to fight off disease. Leonard, AIDS and Employment Law Revisited, 14 Hofstra L. Rev. 11, 17-18 (1985). Soon after infection, antibodies to the virus develop. The infected white blood cells, unable to perform their normal immune system functions, reduce the body’s capability to fight off opportunistic disease or render it ixicapable of doing so. Id. The debilitating effects of AIDS come, not from the virus itself, but from these opportunistic diseases that the immune system cannot fight. The HIV virus is known to be transmitted through blood or semen during sexual intercourse, by contaminated intravenous needles, by the transfusion of tainted blood, and through prenatal exposure. As of April 1989, more than 94,000 cases of AIDS had been reported in the United States, and of that number, 820 had been reported in North Carolina. U.S. Centers for Disease Control, HIV/AIDS Surveillance Report (May 1989). The United States Centers for Disease Control estimates that the number of new cases in 1991 alone will exceed 52,000, and it projects a cumulative total of 270,000 cases by the year 1991. Padraig O’Malley, The AIDS Epidemic: Private Rights and the Public Interest (1989). AIDS has presented a myriad of legal issues, particularly in the employment context. Much debate has focused on the threshold question of whether AIDS or infection with the HIV virus should be defined as a handicap under either state or federal handicap antidiscrimination statutes. “One of the medical facts which makes AIDS a significant workplace issue is that a person may experience HIV infection in its various stages and be virtually asymptomatic, or have symptoms which . . . are not actually disabling.” Leonard, AIDS and Employment Law Revisited, 14 Hofstra L. Rev. 11, 19 (1985). The central issue before this Court is whether a person who is infected with HIV, but who is otherwise asymptomatic, is entitled to protection under the provisions of the North Carolina Handicapped Persons Act, and specifically whether plaintiff has stated a claim upon which relief can be granted under the act. In ruling upon a Rule 12(b)(6) motion, the trial judge must treat the allegations of the complaint as admitted. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). Plaintiff’s complaint therefore stated a proper cause of action under the act unless the court could hold, as a matter of law, that his seropositive status did not constitute a handicap as contemplated by the statute. A complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim. Forbis v. Honeycutt, 301 N.C. 699, 273 S.E.2d 240 (1981). In order to determine whether plaintiff has alleged a good claim, we must interpret the provisions of the Handicapped Persons Act. Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must construe the statute using its plain meaning. Utilities Comm. v. Edmisten, Atty. General, 291 N.C. 451, 232 S.E.2d 184 (1977). But where a statute is ambiguous, judicial construction must be used to ascertain the legislative will. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797 (1948). The primary rule of construction of a statute is to ascertain the intent of the legislature and to carry out such intention to the fullest extent. Buck v. Guaranty Co., 265 N.C. 285, 144 S.E.2d 34 (1965). This intent “must be found from the language of the act, its legislative history and the circumstances surrounding its adoption which throw light upon the evil sought to be remedied.” Milk Commission v. Food Stores, 270 N.C. 323, 332, 154 S.E.2d 548, 555 (1967). Upon careful and thorough analysis of the Handicapped Persons Act, we conclude that both the plain language of its provisions and the legislative history surrounding it indicate that the legislature did not intend to protect persons infected with HIV under this particular act. For many decades, North Carolina has adhered to the employment-at-will doctrine, which provides that “[w]here a contract of employment does not fix a definite term, it is terminable at the will of either party, with or without cause.” Smith v. Ford Motor Co., 289 N.C. 71, 80, 221 S.E.2d 282, 288 (1976) (citing Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971)). This doctrine has recently been narrowly eroded by statutory and public policy limitations on its scope. See, e.g., Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989); Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985). The North Carolina Handicapped Persons Act is a statutory enactment intended to protect handicapped employees from discriminatory employment practices. In the act’s statement of purpose, the legislature provides that: The purpose of this Chapter is to encourage and enable all handicapped people to participate fully to the maximum extent of their abilities in the social and economic life of the State, to engage in remunerative employment, to use available public accommodations and public services, and to otherwise pursue their rights and privileges as inhabitants of this State. N.C.G.S. § 168A-2(a) (1987). We recognize that the Handicapped Persons Act is a remedial statute. Burgess v. Brewing Co., 298 N.C. 520, 259 S.E.2d 248 (1979). Nevertheless, our interpretation of this act must be responsive to two countervailing considerations — the desire to give effect to the statutory objectives and the need to keep the scope of the act within the boundaries intended by the General Assembly. In order to state a cause of action for violation of the right to employment protected by the act, plaintiff must initially establish that he is a “handicapped person” whose rights are protected by the statute. The Handicapped Persons Act defines a “handicapped person” as one who (1) has a physical or mental impairment which limits one or more “major life activities,” (2) has a record of such an impairment, or (3) is regarded as having such an impairment. N.C.G.S. § 168A-3(4) (1987). In order to receive employment protection under the act, a person must additionally fit the definition of a “qualified handicapped person”: With regard to employment, a handicapped person who can satisfactorily perform the duties of the job in question, with or without reasonable accommodation, . . . provided that the handicapping condition does not create an unreasonable risk to the safety or health of the handicapped person, other employees, the employer’s customers, or the public[.] N.C.G.S. § 168A-3(9)(a) (1987). Plaintiff contends that he has alleged facts sufficient to show that he qualifies not only as a “handicapped person” under the act, but also as a “qualified handicapped person” because his HIV infection does not pose a risk to others in the workplace setting. For the reasons set out below, we hold that plaintiff has failed to show that infection with HIV entitles him to protection as a “handicapped person” as that term is defined by the act. Since plaintiff cannot make this threshold showing, we need not examine the additional issue of whether plaintiff is a “qualified handicapped person” as defined by the act. We further hold that because plaintiff’s alleged handicap is a communicable disease, he is not protected under the Handicapped Persons Act because the act contains a provision exempting communicable diseases from protection as handicaps. Plaintiff asserts that, in interpreting the provisions of our act, we may utilize decisions of other state courts construing similar antidiscrimination statutes which have been enacted in other jurisdictions. To date, forty-seven states and the District of Columbia have enacted statutes prohibiting employment discrimination on the basis of disability or handicap. New of these statutes have specifically addressed whether HIV, or communicable diseases in general, are to be included within the definition of “handicap,” but plaintiff asserts that the trend among courts construing these acts has been to grant protection to persons infected with HIV. See, e.g., Raytheon Co. v. Fair Emp. & Housing Com’n., 261 Cal. Rptr. 197, 212 Cal. App. 3d 1242 (1989); Cronan v. New England Tel. & Tel. Co., 41 Fair Empl. Prac. Cas. (BNA) at 1273 (Sup. Ct. Mass. 1986). We have examined the various statutes and have discovered that there is little uniformity among them and minimal case law interpreting their scope. See Parry, AIDS as a Handicapping Condition — Part II, 10 Mental & Physical Disability L. Rep. 2, 4 (1986). Because of this lack of uniformity and because of differences we have discerned in their wording and purpose as compared to the North Carolina act, we conclude that case law from other jurisdictions is of little value to us in our interpretation of the North Carolina act. Plaintiff also requests that we utilize and follow judicial interpretations of the North Carolina act’s federal counterpart, the Rehabilitation Act of 1973, 29 U.S.C. 794, in construing the provisions of the North Carolina act. We concede that the definitions of “handicapped person” and “qualified handicapped person” in the North Carolina Handicapped Persons Act are virtually identical to the definitional provisions of the federal act and that, in fact, the North Carolina act was patterned after the federal act. Because of these similarities, plaintiff requests that we rely upon cases construing the federal act that tend to support his point of view, that is, that communicable diseases such as AIDS and its related conditions are handicaps, and consequently to decide this case in his favor. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 94 L. Ed. 2d 307, reh’g denied, 481 U.S. 1024, 95 L. Ed. 2d 519 (1987) (schoolteacher suffering from a communicable disease — tuberculosis — held to be protected under federal act). However, in construing the intent of our legislature in enacting the North Carolina Handicapped Persons Act, it is important to note that two significant provisions distinguish our state act from the federal act. First, the North Carolina act has a more restrictive definition of a “handicapped person” in that it defines “major life activities” more narrowly than the federal act defines the term. Second, North Carolina’s act contains a communicable disease exemption which is absent from the federal act. These differences lead us to conclude that case law construing the provisions of the federal Rehabilitation Act cannot guide us in our interpretation of the North Carolina act. The first distinguishing characteristic is the difference in the federal act and the North Carolina act in defining the term “major life activities.” As we stated above, both acts define a “handicapped person” as a person who (1) has a physical or mental impairment which limits one or more “major life activities,” (2) has a record of such an impairment, or (3) is regarded as having such an impairment. N.C.G.S. § 168A-3(4) (1987). Major life activities are defined in N.C.G.S. § 168A-3(4)(b) as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, and learning.” As an initial matter, we note that the parties are in agreement that plaintiff has a physical impairment in that he has a viral infection that affects his hemic and lymphatic systems. Defendant disagrees, however, with plaintiff’s assertion that he has, or is regarded as having, a physical impairment which limits a “major life activity.” Plaintiff contends that his ability to work has been impaired by the fact that he was not permitted to continue his employment with defendant after it was determined that he was infected with HIV, and that he therefore fits within the definition of a “handicapped person” because he is regarded as having an impairment that limits a major life activity, “working.” Plaintiff claims that the negative perception of others renders him a “handicapped person” within the meaning of the act. He concludes that this Court should incorporate the term “working” into the North Carolina act’s definition of “major life activities” because, by its terms, the list of functions is illustrative rather than exhaustive. We note that the federal act, unlike the North Carolina act, does indeed list “working” as one of the major life activities that may be found to have been limited by a physical or mental impairment. However, the drafters of the North Carolina act specifically removed the term “working” from the senate bill as originally enacted. See S. 272, Committee Substitute (adopted 30 May 1985). The specific exclusion of “working” from this list is significant because it is the only activity listed by the federal act that was not included in our state act. As this Court has recognized, “by modifying the language borrowed from [a] federal act, the North Carolina legislature must have intended to alter its meaning to some extent.” Edmisten, Attorney General v. Penney Co., 292 N.C. 311, 316, 233 S.E.2d 895, 898 (1977). The deletion of the term “working” is some indication that the General Assembly intended for the Handicapped Persons Act to be more narrow in scope than its federal counterpart. Plaintiff concedes that his ability to perform his usual work at the defendant restaurant is not actually impaired by his HIV infection. He is in fact asymptomatic. As an asymptomatic carrier of HIV, plaintiff has failed to show that he has any condition that would substantially limit his ability to perform any of the physical or mental tasks listed in the Handicapped Persons Act as major life activities. Plaintiff additionally argues that infection with HIV is a physical impairment which limits other activities which he contends are “major life activities” — his ability to bear a healthy child and his ability to engage in sexual relationships for fear of transmitting the virus. Because he has a physical impairment which limits one or more “major life activities,” plaintiff argues, he qualifies under the Handicapped Persons Act’s first definition of a “handicapped person,” as set out above. We disagree with plaintiff’s assertion that these limitations fall within the scope of the act’s definition of “major life activities.” The activities plaintiff enumerates are not of the same nature as those listed in the statute, that is, essential tasks one must perform on a regular basis in or

Lynn Teachers Union, Local 1037, AFT, AFL-CIO, vs. Massachusetts Commission Against Discrimination. Essex. September 11, 1989. January 22, 1990. Present: Liacos, C.J., Wilkins, Abrams, Nolan, Lynch, O’Connor, & Greaney, JJ. Employment, Discrimination. Massachusetts Commission Against Discrimination. Anti-Discrimination Law, Employee, Sex, Maternity leave, Prima facie case, Burden of proof. Statute, Construction. The Massachusetts Commission Against Discrimination correctly found a “continuing violation” of G. L. c. 15IB, § 4 (1), in a union’s failure to credit two female employees with seniority under its seniority system’s requirement of consecutive years of service because of the employees’ interruption of service (involuntarily) due to an unlawful maternity leave policy, with the result that the six-month filing limitation of G. L. c. 151B, § 5, did not apply. [520-523] The Massachusetts Commission Against Discrimination correctly determined that the exemption embodied in G. L. c. 151B, § 4 (17) (a), referring specifically to age discrimination, did not apply to cases of sex discrimination. [523-525] Lynch, J., with whom O’Connor, J., joined, dissenting. Complainants before a commissioner of the Massachusetts Commission Against Discrimination established a prima facie case that a certain union seniority system unlawfully discriminated against them, where they demonstrated that they were denied seniority credit as the result of being unlawfully forced to resign their employment on account of pregnancy. [526-527] Greaney, J., concurring. Civil action commenced in the Superior Court Department on October 28, 1985. The case was heard by John T. Ronan, J. The Supreme Judicial Court granted a request for direct appellate review. Deborah L. McCutcheon for the plaintiff. Jean A. Musiker for Massachusetts Commission Against Discrimination. Liacos, C.J. The plaintiff, Lynn Teachers Union, Local 1037 (union), appeals from the judgment entered in the Superior Court affirming the decision of the Massachusetts Commission Against Discrimination (commission). The commission had upheld the decision of a hearing commissioner (commissioner); the commissioner had ruled that the union had engaged in illegal sex discrimination in violation of G. L. c. 151B, § 4 (1) (1988 ed.). The case arose out of claims by two teachers that they had been discriminated against by the school committee of Lynn (school committee) which refused to grant them preresignation credit for seniority purposes. The teachers had been forced to resign due to pregnancy. The union challenges the judge’s decision, claiming that the original complaint filed with the commission was barred by the six-month filing limitation of G. L. c. 15IB, § 5 (1988 ed.), and that the commission’s decision that the claim was a “continuing” violation under 804 Code Mass. Regs. § 1.03(2) (1986), exempt from the statutory bar, was erroneous as matter of law. The union also argues that its bona fide, facially neutral seniority system is protected by G. L. c. 15IB, § 4 (17) (a), from claims of sex discrimination, and that the commission erred in granting the two complainants relief from the neutral application of the system. Finally, the union claims that the commission should have dismissed the original complaint because the complainants failed to make out a prima facie case of employment discrimination. We agree with the judge’s decision that the commission’s findings of fact are supported by the evidence and that its determination that the situation presented a continuing violation was not erroneous as matter of law. We affirm. We summarize the facts as found by the hearing commissioner. Early in 1962, Joyce Angelli, a tenured teacher in the Lynn school system, learned that she was pregnant and that her child would be born around December, 1962. At that time, the rules of the school committee required that teachers who became pregnant apply for a maternity leave of absence without pay. A pregnant teacher who was granted leave had to leave employment at least four months prior to the expected date of delivery and could not return any time earlier than seven months after the birth of the child. Teachers could return from maternity leave only at the beginning of the school year, and those teachers failing to return within two years were treated as having resigned. Only tenured teachers were eligible for maternity leave; nontenured teachers who became pregnant were forced to resign. Angelli applied for, and was granted, a maternity leave for the 1962-1963 school year. Her first child was born on December 31, 1962, and her second child was born in August, 1964. Under the rules of the school committee, Angelli could not return to work at the beginning of the 1964-1965 school year in September. Because Angelli had not returned from her maternity leave within two years, the school committee treated her as having resigned her position, effective September, 1964. Angelli took a part-time teaching position in the Lynn school system in April, 1976, returning to full-time teaching duties in September, 1977. During the summer of 1970, Carol Griffin learned that she was pregnant and would deliver in early 1971. Griffin had been employed as a teacher in the Lynn public schools since September, 1968. Because Griffin was not a tenured teacher, she was not entitled to maternity leave and was forced to resign in November, 1970, due to her pregnancy. Griffin began working part time at the Lynn English High School in November, 1974, eventually returning to'a regular full-time teaching position with the Lynn school system in September, 1978. The plaintiff union was certified in November, 1966, as the exclusive collective bargaining agent for all classroom teachers in Lynn. A collective bargaining agreement between the school committee and the union governed the terms and conditions of employment for Angelli and Griffin, both of whom were union members. At all times material to this case, the collective bargaining agreement provided that seniority of employees would be computed according to the number of '''‘consecutive years of experience in the Lynn School Department” (emphasis added). Because the maternity policy had forced Angelli and Griffin to leave their jobs, their total years of employment within the Lynn school system were not consecutive. Thus, the seniority system embodied in the collective bargaining agreement did not credit either Angelli or Griffin for those years of employment preceding pregnancy and subsequent resignation. In June, 1980, Griffin began to inquire about obtaining seniority credit for her preresignation employment. Her efforts at that time were unsuccessful. In November, 1980, the Massachusetts electorate voted to implement Proposition 2xh. St. 1980, c. 580. Anticipating a layoff of teaching personnel due to Proposition 2lh, the union requested that the school committee delineate each teacher’s seniority. On March 4, 1981, both Angelli and Griffin (complainants) filed a “charge of discrimination” with the commission against the school committee for its failure to credit the complainants for their service prior to the forced resignations. It was not until March 18, 1981, when the school committee distributed the seniority list which the union had requested, that the complainants formally learned that the committee would not credit their prior service. In August, 1982, the school committee voted to grant Griffin and Angelli seniority credit for their preresignation service. The union, however, grieved the committee’s decision as a violation of the collective bargaining agreement. An arbitrator upheld the grievance, and, as a result, both teachers were sent a termination notice. Griffin and Angelli filed amended complaints in November, 1982, naming the union as well as the school committee as respondents. On February 21, 1985, the hearing commissioner issued her decision finding that the union had discriminated against the complainants on the basis of their sex in violation of G. L. c. 151B, § 4. The union was ordered to credit the complainants for their preresignation seniority and to pay Griffin $1,000 plus interest to compensate for her emotional distress. The union appealed the decision to the full commission which upheld the hearing commissioner’s decision on September 25, 1985. Pursuant to G. L. c. 30A, § 14 (1), the union applied for judicial review of the commission’s decision. On July 5, 1988, a judge of the Superior Court affirmed the decision of the commission. The union appealed the decision of the Superior Court. 1. G. L. c. 151B, § 4 (1), and the application of the continuing violation rule. General Laws c. 151B, § 4 (1), prohibits discrimination in the “terms, conditions or privileges of employment” on the basis of an employee’s sex. Any person who feels that his or her rights under G. L. c. 15IB, § 4. (1), have been violated may file a complaint with the commission, which has the power to hold hearings and render judgments regarding claims of unlawful discrimination. G. L. c. 151B, § 3 (1) - (13). Ordinarily, a complaint of unlawful discrimination must be filed with the commission within six months of the alleged act of discrimination. G. L. c. 15IB, § 5. However, this six-month limitation will not be applied where “the unlawful conduct complained of is of a continuing nature.” 804 Code Mass. Regs. § 1.03(2). Where there is a determination of a continuing violation, a complaint is timely filed even though the discriminatory action commenced more than six months prior to the challenge. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 207-208 (1981). The purpose of this “continuing violation” rule is to permit the commission to “remedy ongoing discriminatory policies by an employer.” Id. at 207. In the present case, the commission decided that the union’s failure to credit the complainants for their preresignation seniority was a continuing violation, thereby releasing the complainants from the six-month filing limitation of G. L. c. 151B, § 5. The union challenges this decision, claiming that the only discriminatory acts occurred in 1964 and 1970, when the maternity leave policy dictated the resignation of the complainants. Such acts, the union argues, are too remote to meet the filing requirements of G. L. c. 15IB, § 4. The commission found a continuing violation of G. L. c. 151B, § 4 (1), in the failure of the union to credit the complainants with their preresignation seniority under the seniority system’s requirement of consecutive years of service. The commission reasoned that, because the number of the complainants’ consecutive years of service had been reduced by an illegal maternity leave policy, the seniority system gave effect to that discriminatory policy by failing to credit the complainants for their preresignation service. According to the commission, the complainants underwent a new act of illegal discrimination each day that their status on the seniority list remained lower than it would have been but for the illegal maternity leave policy. Thus, under this analysis, the union’s refusal to credit the complainants with their preresignation seniority was a daily, continuing violation of G. L. c. 15IB, § 4 (1). The union claims that the application of a facially neutral seniority system cannot be considered a discriminatory act for the purposes of the continuing violation rule, even though it gives present effect to a past act of discrimination. The union points to the decision in United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), in support of its contention. We find its arguments unpersuasive. While the union is correct in pointing out that the seniority system is facially neutral and does not explicitly adopt the discriminatory rule contained within the original maternity leave policy, the union ignores the fact that the seniority system credits the complainants with fewer years of employment than they have served solely because they became pregnant during their employment and were forced to resign. The union argues that the seniority system does not treat the complainants any differently than “any other employee, male or female, who returned to teaching after several years absence, whether the initial separation was voluntary or involuntary." But the union has failed to consider the more telling issue whether the seniority system discerns between “initial separations” which are legal and those which are illegal. We are not concerned with the seniority system’s responsiveness to the desires of those teachers who leave their jobs voluntarily; rather, we are concerned with the seniority system’s responsiveness to the rights of those teachers who are forced to leave. A seniority system which is so “facially neutral” that it ignores prior discriminatory acts against its members, to the detriment of those members, presents a ready vehicle for application of the continuing violation rule. In Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 207 (1981), we described the purpose of the continuing violation rule as “[permitting the commission] to remedy ongoing discriminatory policies.” In the present case, that purpose is met by the commission’s application of the continuing violation rule. The union’s refusal to credit the complainants’ preresignation seniority springs directly from the discriminatory maternity leave policy. Had the union been willing to alter its seniority system to disregard breaks in service caused by illegal acts, the effects of the maternity leave policy would have gradually disappeared. Instead, the union’s refusal to credit the complainants for their preresignation seniority breathes new life into a concededly illegal policy. Given the union’s knowledge that the complainants were illegally forced to resign, the refusal to credit the complainants constituted a discriminatory act in violation of G. L. c. 15IB, § 4. We agree with the Court of Appeals of New York, which, on similar facts, concluded that a continuing violation existed and stated that such a seniority system “imposes a distinct burden on a woman who became pregnant during service, effectively penalizing her again for her prior pregnancy” (emphasis added). Board of Educ. of Farmingdale Union School Dist. v. State Div. of Human Rights, 56 N.Y.2d 257, 261-262 (1982). The commission has been charged with the task of combating discrimination in the Commonwealth and, pursuant to its statutory powers, has developed the continuing violation rule to assist in carrying out its legislative mandate. To limit the continuing violation rule to the interpretation proposed by the union would be to strip the rule of its vitality, while allowing the dead hand of past discrimination to reach out to revisit illegal discrimination upon its past victims again and anew. To this we cannot agree. 2. The seniority system and application of G. L. c. 151B, § 4 (17) (a). General Laws c. 151B, § 4 (17) (a), provides: “Notwithstanding any provision of this chapter, it shall not be an unlawful employment practice for any person, employer, labor organization or employment agency to: . . . observe the terms of a bona fide seniority system . . . which is not a subterfuge to evade the purposes of this section, except that no such seniority system . . . shall require or permit the involuntary retirement of any person because of age except as permitted by paragraph (6)” (emphasis supplied). The union claims that G. L. c. 151B, § 4 (17) (a), releases its bona fide seniority system from the requirements of G. L. c. 15IB, § 4, and that the commission erred in deciding that the statutory exemption did not apply to cases of sexual discrimination. The union presented this same argument to both the commissioner and the commission, and in each instance it was rejected. As we review the validity of the commission’s decision, we keep in mind that “[a]n agency’s interpretation of a statute, under which it is vested with broad authority to effectuate the purposes thereof, is entitled to great weight.” Polednak v. Rent Control Board of Cambridge, 397 Mass. 854, 858 (1986). Therefore, the commission’s determination that the statutory exemption did not apply in the present situation is not to be disregarded lightly. The commissioner noted that § 4 (17) (a) was inserted in G. L. c. 15IB, § 4, by St. 1984, c. 266. Chapter 266 is entitled, “An Act relative to the dismissal of certain persons from employment or the refusal to employ such persons due to age.” Chapter 266 consists of seven sections, each of which amends various chapters of the General Laws regarding their treatment of “age” in the employment context. This court has recognized that, “[wjhile the title to an act cannot control the provisions of the statute, the title may be used for the purpose of ascertaining its proper limitations.” Commonwealth v. Graham, 388 Mass. 115, 120 (1983). American Family Life Assurance Co. v. Commissioner of Ins., 388 Mass. 468, 474 (1983). Similarly, we have held that, in interpreting a statute this court may consider “the cause of [the statute’s] enactment, the mischief or imperfection to be remedied and the main object to be accomplished.” O’Brien v. Director of the Div. of Employment Sec., 393 Mass. 482, 488 (1984), quoting Industrial Fin. Corp. v. State Tax Comm’n, 367 Mass. 360, 364 (1975). The title and provisions of c. 266 make clear the intent of the Legislature to focus exclusively on the problem of age discrimination in the workplace. General Laws c. 15IB addresses issues of discrimination on the basis of race, color, religious creed, national origin, age, sex, or ancestry. However, c. 266 refers explicitly only to age discrimination in its amendment to c. 151B, to the exclusion of all other forms of discrimination encompassed by c. 15IB. Had the Legislature intended to affect the statutory treatment of other forms of discrimination, it would have made some reference to these other types of discrimination in either the title or the provisions of c. 266. Brady v. Brady, 380 Mass. 480 (1980). We agree with the commissioner that, by its addition of paragraph (17) (a) to G. L. c. 15IB, § 4, the Legislature did not intend to screen bona fide seniority systems from the scrutiny of all of the Commonwealth’s antidiscrimination laws. Because the present case involves a case of discrimination on the basis of sex, the provisions of G. L. c. 151B, § 4 (17) (a), do not apply. 3. Prima facie case of employment discrimination. The union claims that the complainants failed to establish a prima facie case of employment discrimination, and therefore the commission erred in not dismissing the complaints. We disagree. When an employment act or practice is challenged as discriminatory, the burden of proof as to the unlawfulness of the act or practice falls on the challenging party. Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 614-615 (1983). “[P]roof of a prima facie case establishes that, in the absence of other and lawful explanation, the challenged employment decision was based on impermissible and discriminatory factors in violation of G. L. c. 15IB.” Id. at 615. A prima facie case of employment discrimination can be based on a theory of disparate impact or disparate treatment. School Comm. of Braintree v. Massachusetts Comm’n Against Discrimination, ill Mass. 424, 428 (1979). The complainants chose to present the matter to the hearing commissioner as one of disparate treatment. A prima facie case of disparate treatment requires that the challenging party make a showing that he or she was discriminated against in employment on the basis of illegal considerations. Id. In addition, the challenging party must prove discriminatory intent or motive. Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 227 (1978). In the present case, complainants made a showing that