Failure to Accommodate Cases

Alan J. Labonte vs. Hutchins & Wheeler. Suffolk. October 7, 1996. May 5, 1997. Present: Wilkins, C.J., Abrams, O’Connor, & Fried, JJ. Anti-Discrimination Law, Handicap, Termination of employment. Estoppel. Employment, Discrimination, Termination. Damages, Emotional distress, Punitive. Words, “Qualified handicapped person.” In an action asserting a claim based on handicap discrimination in employment, the plaintiff was not estopped from pursuing that claim because he applied for and received disability benefits after being terminated from his employment, where the plaintiff never claimed to have been totally disabled during the time he was seeking a reasonable accommodation and where he demonstrated that he was quite able to perform his duties had he been given a reasonable accommodation. [816-820] In a handicap discrimination case, the evidence presented supported the conclusion that the plaintiff was a qualified handicapped person, able to perform the essential functions of his job provided his employer made a reasonable accommodation for him, and the evidence was sufficient to warrant the denial of the employer’s motion for judgment notwithstanding the verdict. [820-823] In a handicap discrimination case, the jury reasonably could have concluded that the evidence of depression the plaintiff suffered as a result of his termination from employment was sufficient to warrant an award of damages for emotional distress [823-824]; however, the award was excessive based on the evidence presented and the matter was remanded for a hearing on the amount of a remittitur [824-826], A handicap discrimination case was remanded for reconsideration of the punitive damages award in light of BMW of N. Am. v. Gore, 517 U.S. 559 (1996), decided after the trial and the hearing on the motion for new trial. [826-827] Civil action commenced in the Superior Court Department on September 11, 1992. The case was tried before Catherine A. White, J. The Supreme Judicial Court granted an application for direct appellate review. Richard W. Renehan (Joshua M. Davis with him) for the defendant. David Rapaport (Jerry E. Benezra with him) for the plaintiff. Tames G. Wheeler and others, copartners doing business under the law firm name and style of Hutchins & Wheeler. We shall refer to a single defendant (law firm). Abrams, J. The defendant, the law firm of Hutchins & Wheeler (law firm), appeals from a jury verdict in favor of the plaintiff, Alan J. Labonte, based on handicap discrimination. See G. L. c. 15 IB, § 4. The law firm argues that: (1) the plaintiff is estopped from pursuing his claim because he sought disability benefits; (2) the evidence was insufficient to withstand a motion for directed verdict; and (3) the judge erred in denying its motion for remittitur or a new trial based on excessive damages. We allowed the law firm’s application for direct appellate review. We affirm the determination of liability. We remand the case to the Superior Court for further proceedings on the issue of damages. 1. Facts. In June, 1990, the plaintiff, Alan J. Labonte, was hired as the executive director of the law firm. When hired, he was informed that his job would have a “continuously high” stress level. He was told that he would be required to perform many functions, although the exact functions never were incorporated explicitly into a written job description. At the job interview the law firm implied that the hours would be long. The plaintiff was to receive $115,000 per year for his services. The plaintiff, a Greenfield resident, took up residence in an apartment near the law firm. His family remained in Greenfield. The plaintiff stayed in Boston during the week and traveled to Greenfield on weekends to be with his family. After a year, the plaintiff bought a home in the Boston area so that his family could be with him. Various partners of the law firm knew of and assisted with the mechanics of the purchase of the home and none dissuaded him from making the purchase or gave any indication that his job was in jeopardy. During the first year, the plaintiff created a timekeeping system that saved the law firm $13,000 per month, arranged for a better life insurance package for the attorneys, rearranged leasing agreements to save rental payments of $43,000, lowered client disbursement costs by $200,000, and devised a system to cut overtime expenses to save $40,000. In June, 1991, the plaintiff received an evaluation stating that the partners were “very satisfied” with the work that he was doing. The plaintiff received a raise of $4,600 a year. Approximately one year after starting at the law firm, the plaintiff developed a limp. A partner at the law firm suggested that he visit a doctor who was a client of the law firm. The plaintiff did so. The plaintiff learned that he had multiple sclerosis. He was referred to a neurologist, who specialized in the disease. After learning that the plaintiff had multiple sclerosis, the partners on the management committee began to shun him. Despite a request to do so by the plaintiff, the partners never communicated with the specialist to determine what measures could be taken to accommodate the plaintiff in light of his condition. The only effort made was to meet over lunch on one occasion with the plaintiff’s referring doctor. The doctor told them to limit the amount of walking that the plaintiff would be required to do. He also stated that the plaintiff might need to rest during the day. The plaintiff continued to work long hours, including taking on additional tasks assigned by the partners such as leading a search committee for a replacement for an employee who had left. The partners at the law firm made no effort to move the plaintiff’s office or to limit his need for walking. On one occasion, one partner did tell the plaintiff that he should go home if he was tired so that he would not wear himself out and then be ineffective. The partners continued to maintain a heavy work load for the plaintiff, and also pressured him to cancel a personal trip to Florida that he had planned in December, 1991. In January, 1992, the plaintiff was terminated by the law firm. With the exception of the one lunch meeting with the referring doctor, the partners never met with any of the plaintiff’s doctors or the plaintiff himself prior to his termination to discuss whether reasonable accommodation to assist the plaintiff was possible. The reason given for his termination was poor work performance due to his disability. The law firm claimed that the plaintiff’s thinking was not as “crisp” as it needed to be. After being terminated, the plaintiff applied for and received disability benefits from a law firm insurance policy, stating that he was “unable to work long hours in a stressful job; [and] need[ed a] flexible work schedule.” As a result of being terminated, the plaintiff became very depressed and sought therapy. Soon after his termination, he began consulting for a hospital in the greater Boston area. By the fall of 1993, the plaintiff was enrolled in a doctoral program at Boston University, taking classes and teaching. 2. Estoppel. The law firm claims that the plaintiff is estopped from pursuing this discrimination claim because he sought disability benefits after being terminated by the law firm. The law firm asserts that a plaintiff claiming disability benefits admits that he is totally disabled and is unable to perform his job. Therefore, the plaintiff is not a “qualified handicapped person.” A majority of courts have rejected a defendant’s claim that seeking benefits automatically disqualifies a plaintiff from pursuing a handicap discrimination claim. Courts are wary of allowing plaintiffs to play “fast and loose with the courts” by claiming to be too disabled to perform the functions of a job and also claiming that they were terminated from their positions despite being able to perform those same functions. See McNemar v. Disney Store, Inc., 91 F.3d 610, 618 (3d Cir. 1996), cert denied, 117 S. Ct. 958 (1997). However, if the evidence creates a disputed issue of fact whether the handicapped person can perform the essential functions of the job, then estoppel is not appropriate. See Pegues v. Emerson Elec. Co., 913 F. Supp. 976, 980-981 (N.D. Miss. 1996) (application for disability benefits does not “necessarily foreclose” a claim of handicap discrimination); Parisi v. Jenkins, 236 Ill. App. 3d 42 (1992); Department of Transp. v. Grawe, 113 Ill. App. 3d 336 (1983); Jishi v. General Motors Corp., 207 Mich. App. 429 (1994); Paschke v. Retool Indus., 445 Mich. 502 (1994) . Only one court has explicitly adopted a strict rule maintaining that a person filing for disability benefits is estopped from pursuing any claim for discrimination, solely because that person sought and received disability benefits. See Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 557 (D. Kan. 1995). Other “courts [applying estoppel] did not find it dispositive that the plaintiff had made representations of disability in order to receive benefits. Rather, some of the courts considered such representations as factors to be weighed in determining whether a fact question existed.” Morton v. GTE North, Inc., 922 F. Supp. 1169, 1182 (N.D. Tex. 1996) (rejecting the notion that cases other than Garcia-Paz, supra, apply estoppel based solely on a claim for disability benefits). Relying on Beal v. Selectmen of Hingham, 419 Mass. 535 (1995) , and August v. Offices Unlimited, Inc., 981 F.2d 576 (1st Cir. 1992), the law firm asserts that the plaintiff should be estopped from pursuing this action. We do not agree. In Beal, a police officer was on paid disability leave for two years after suffering severe injuries sustained in a head-on automobile collision while on duty. When ordered to return to duty, the officer claimed that she was “permanently and totally disabled.” Beal, supra at 543. The officer was terminated and thereafter claimed handicap discrimination. Id. at 537. We concluded that her declaration of total disability on being asked to return to work was proof that she could not have performed the essential functions of the position. Id. at 539-543. We also noted that a police officer’s job, even a desk job, necessitated the ability to react quickly in emergency situations and that the plaintiff’s propensity to blackouts in stressful situations made her unable to perform the essential functions of the job. Id. at 542-543. These factors together eliminated any dispute as to whether the plaintiff could perform the essential functions of the job. Similarly, in August, the plaintiff, a salesman, had taken a continuous leave of absence due to clinical depression. His six-week leave began on March 27, 1989, and was later extended an additional two weeks to end on May 22, 1989. At a May 11 meeting, August expressed his concern over his ability to perform on a full-time basis and was told that a part-time schedule was inappropriate. Unsure of his ability to return to work, the plaintiff filed for disability benefits on May 12, 1989. August, supra at 578-579. On May 25, 1989, August was terminated because “it [was] certainly unclear when and if [August would] be able to return to work.” Id. at 579. He sought and received disability benefits for the rest of the year and renewed his claim in December, 1989; February, 1990; April, 1990; and June, 1990, on the basis that he was totally and continuously disabled. The application for benefits included a statement from the plaintiff’s doctor that the plaintiff had been “totally disabled” since March, 1989. August brought suit claiming handicap discrimination. The court denied August relief because it stated that his declaration that he was “totally disabled” was an admission that he was unable to perform the essential functions of the job, even given reasonable accommodation. Id. at 581-583. He failed to provide evidence that he could perform the essential functions of the job given reasonable accommodation. Id. Thus, when the request for accommodations was made, August already had admitted to being “totally disabled” and not a qualified handicapped person. The plaintiff points to D’Aprile v. Fleet Servs. Corp., 92 F.3d 1 (1st Cir. 1996), as the analysis we should follow because it is the closest to his case. We agree. D’Aprile, a senior systems support analyst with multiple sclerosis, worked for two months on a flexible part-time schedule, using her vacation time to create a de facto accommodation. The plaintiff performed the essential functions of her job at a high level when allowed to use this schedule. When her vacation time elapsed, the employer denied her the opportunity to maintain the flexible schedule. She was terminated because she could not work a full-time weekly schedule and immediately filed for disability benefits. The employer argued that, based on the authority of August, the filing for disability benefits precluded the plaintiff from suing on the basis of handicap discrimination. The court disagreed. The court noted that D’Aprile never claimed to be totally disabled during the time in which she requested her accommodation. D’Aprile, supra at 4. Her application for disability benefits came only after her requests for accommodation were ignored. Unlike August, who had claimed “total disability” while seeking accommodation, D’Aprile did not seek disability benefits until after she had been terminated. Therefore, the court reasoned that, because “D’Aprile never claimed to have been totally disabled during the time she requested her accommodation, and demonstrated her ability to work with the accommodation she requested,” the mere fact that she sought disability benefits did not preclude her from bringing a claim of handicap discrimination. Id. at 5. The law firm asserts that “neither [the plaintiff] nor his doctors ever qualified their numerous statements to [the insurer].” This assertion is incorrect. On the form on which the plaintiff filed his claim for benefits, he stated that he was in need of a flexible work schedule. This request for accommodation, never considered by the law firm, was evidence that the plaintiff was not claiming to be totally disabled. See Ward v. Westvaco Corp., 859 F. Supp. 608, 615 (D. Mass. 1994) (plaintiff’s statement on an application for disability benefits indicating that accommodation was necessary made estoppel inappropriate). Further, unlike August where no disputed factual issue existed as to whether the plaintiff was a “qualified handicapped person” based on a claim of total disability, the case at bar presented a contestable claim based on disputed issues of fact. In sum, there was evidence to show that the plaintiff was capable of working a fifty-five hour week when allowed to utilize a flexible schedule and when his expected amount of walking was limited. He did so at Boston University after being terminated by the law firm. The person who filled his job at the law firm before and after the plaintiff devoted less time to the functions of the position of executive director than the plaintiff devotes to his current position. There was evidence that the plaintiff could have handled the time requirements necessary to perform the essential functions. The plaintiff’s evidence was that he was disabled to perform the job without reasonable accommodation, but quite able to perform the job given some reasonable accommodation. The plaintiff sought an office near the elevators and flexible working hours. In these circumstances, estoppel is inappropriate. See, e.g., D’Aprile, supra at 4-5; Mohamed v. Marriott Int’l, Inc., 944 F. Supp. 277 (S.D.N.Y. 1996). We conclude that the judge did not err in denying the law firm’s claim that the plaintiff was estopped from pursuing a claim under G. L. c. 151B, § 4, by filing for disability benefits. 3. Sufficiency of evidence. The jury concluded that the law firm terminated the plaintiff, a qualified handicapped person, solely because of his handicap. We start with the proposition that taking the question out of the jury’s hands is disfavored in the context of discrimination cases based on disparate treatment because the ultimate issue is often that of intent, and is a factual question. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437 (1995), citing Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 705 (1992). See Flesner v. Technical Communication Corp., 410 Mass. 805, 809 (1991) (“where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate”). Noting this preference for submitting the question to the jury, when we review the entry of a judgment notwithstanding the verdict, we view the evidence in the light most favorable to the plaintiff and disregard evidence favorable to the law firm. Cimino v. Milford Keg, Inc., 385 Mass. 323, 326 (1982); Poirier v. Plymouth, 374 Mass. 206, 212 (1978). A jury verdict must be sustained if a plaintiff has presented any evidence from which the jury reasonably could have arrived at that verdict. 4. Three-stage order of proof in discrimination cases. General Laws c. 151B, § 4, provides in relevant part: “It shall be an unlawful practice . . . [f]or any employer, personally or through an agent, to dismiss from employment ... or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” In disparate treatment cases, there is a three-stage order of proof, Blare, supra at 440-445, adopted from the approach taken by the Federal courts based on an analogous statute. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In the first stage, the burden is placed on the plaintiff to show by a preponderance of the evidence a prima facie case of discrimination. Blare, supra at 440-445. Massachusetts has adopted a flexible approach to this framework, acknowledging that “the facts necessary to establish prima facie case of discrimination will vary depending on [the] situation.” Beal v. Selectmen of Hingham, 419 Mass. 535, 544 (1995). To establish the prima facie case of unlawful employment discrimination on the basis of handicap pursuant to G. L. c. 151B, a plaintiff who has been terminated from employment must show that: (1) he suffers from a handicap; (2) he is a “qualified handicapped person”; and (3) he was fired solely because of his handicap. Garrity v. United Airlines, Inc., 421 Mass. 55, 60 (1995); Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383 (1993). Once a prima facie case is made, the burden shifts to the law firm to offer a legitimate nondiscriminatory reason for its action. A plaintiff could still prevail by showing that the reason given by the employer is merely a pretext for discrimination. The law firm consolidates the steps by offering that its reason for termination was that the plaintiff’s disability made him unable to perform the essential functions of the job. A “qualified handicapped person” is someone who can perform the “essential functions” of the job in question, provided that the employer makes “reasonable accommodation” for that employee. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987); Garrity, supra at 61-62. The law firm argues that the plaintiff is not a “qualified handicapped person.” While the law firm presented some evidence to the contrary, the evidence and the inferences in the light most favorable to the plaintiff support the conclusion that the plaintiff could perform the essential functions of the job with reasonable accommodation. No official job description for the position of executive director was offered in evidence. The la

Kathleen Pielech & another vs. Massasoit Greyhound, Inc. Bristol. November 7, 1995. August 20, 1996. Present: Liaoos, C.J., Wilkins, Abrams, Lynch, O’Connor, Grbanby, & Fried, JJ. Statute, Construction. Employment, Discrimination. Anti-Discrimination Law, Employment. Constitutional Law, Freedom of religion. Jurisdiction, Ecclesiastical controversy. This court concluded that G. L. c. 15 IB, § 4 (1A), prohibiting employment discrimination based on religion, violates the establishment clause of the First Amendment to the United States Constitution by preferring organized religious belief over other sincerely held beliefs, by promoting excessive government entanglement with religion, and by effectively compelling the courts to ascertain the requirements of the religion at issue. [538-542] Abrams, J., dissenting, with whom Liacos, C.J., & Grbanby, J., joined. Civil achon commenced in the Superior Court Department on June 15, 1993. The case was heard by John J. O’Brien, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Howard A. Brick for the Anti-Defamation League. Joel A, Kozol (William I. Cowin with him) for the defendant. Harvey A. Schwartz, for Kathleen Pielech & another, submitted a brief. The following submitted briefs for amici curiae: Nancy J. Gannon, of Wisconsin, for the Catholic League For Religious and Civil Rights. Howard A. Brick, Sally J. Greenberg & Carl E. Axelrod, & Ruth L. Lanser, Steven Freeman & Debbie N. Kaminer of New York, for the Anti-Defamation League. Scott Harshbarger, Attorney General & Freda K. Fishman, Assistant Attorney General, for the Attorney General. Toni G. Wolfman, Michael A. Albert, & Sarah R. Wunsch for Civil Liberties Union of Massachusetts. Wilson D. Rogers, Jr., Frederic J. Torphy, James F. Cos-grove, & John J. Egan, for the Roman Catholic Archbishop of Boston & others. Patricia Reed. We acknowledge the filing of amicus briefs by the Attorney General, the Roman Catholic Archbishop of Boston together with the Roman Catholic Bishops of Fall River and Worcester and the administrator of the Roman Catholic Diocese of Springfield, Catholic League for Religious and Civil Rights, the Anti-Defamation League, and Civil Liberties Union of Massachusetts. O’Connor, J. The plaintiffs, former at-will employees of the defendant corporation, seek damages based on their assertion that the defendant required them, as a condition of their continued employment, to work on Christmas Day in contravention of their “creed or religion as required by that creed or religion” in violation of G. L. c. 15 IB, § 4 (1A) (1994 ed.). The plaintiffs also claim entitlement to relief under G. L. c. 93, § 102 (1994 ed.) (Massachusetts Equal Rights Act). The plaintiffs moved for summary judgment and the defendant filed a cross motion for summary judgment as to liability. A Superior Court judge allowed the defendant’s motion and denied that of the plaintiffs. The plaintiffs appealed, and we granted their application for direct appellate review. We affirm the judgment for the defendant, although our reasoning differs from that of the Superior Court judge. The following undisputed facts are established by the summary judgment materials: The plaintiffs were employed by the defendant as part-time parimutuel clerks at the Raynham-Taunton Greyhound Track. On December 18, 1992, the defendant posted a notice informing all regularly scheduled employees that they would be required to work on Christmas night, Friday, December 25, 1992. The plaintiffs were regularly scheduled to work on Fridays, but requested Christmas off to observe the holiday. The defendant denied their requests. The plaintiffs failed to appear for work on December 25. The parties differ as to whether they were “terminated” or “suspended.” In any event, they suffered “adverse action” for purposes of c. 15 IB, § 4 (1A). In addition, the plaintiffs submitted affidavits that at the relevant time they were devout members of the Roman Catholic Church and that, as such, their religious beliefs prohibited them from working on Christmas. The question whether abstinence from work on Christmas was required by Roman Catholic dogma was also the subject of affidavits given by two Roman Catholic priests, one of which was submitted by the plaintiffs and the other of which was submitted by the defendant. The affidavit submitted by the defendant essentially stated that Roman Catholics are obligated to attend one mass celebrated between 4 p.m. on December 24 and 1 p.m. on December 25, and that the church neither prohibits its members from working on Christmas nor requires them to worship on Christmas night. The priest’s affidavit submitted by the plaintiffs said that “[o]n Sundays and other holy days of obligation the faithful are... to abstain from those labors and business concerns which impede the worship to be rendered to God, the joy which is proper to the Lord’s Day, or the proper relaxation of mind and body.” That affidavit also cited the following statement from The Catholic Encyclopedia as authoritative: “Church law forbids servile work on Sundays and holy days of obligation, but exceptions are made for those functions that are necessary for the well-being of society, or for those who must support their family or to maintain their livelihood.” “Based on the authorities provided by the parties, [the motion judge] rule[d]” as follows: “Catholic dogma does not require worshippers to abstain from working on Holy days. The only requirement the church absolutely imposes upon its followers is to attend mass. Plaintiffs were not denied the opportunity to attend mass, and therefore, plaintiffs cannot establish that they were forced to forgo a practice required by their religion. The fact that plaintiffs wished to further observe the Christmas holiday does not constitute a religious requirement. See Lewis v. Area II Homecare for Senior Citizens, Inc., [397 Mass. 761, 772 (1986)]. As plaintiffs’ claim for violation of G. L. c. 15IB, [§] 4 (1A) fails, so too must their claims premised on G. L. c. 93, [§] 102.” (Emphasis in original.) General Laws c. 15IB, § 4 (1A), provides in pertinent part the following: “It shall be unlawful discriminatory practice for an employér to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate, or [forgo] the practice of, his creed or religion as required by that creed or religion including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or holy day and the employer shall make reasonable accommodation to the religious needs of such individual. . . . The employee shall have the burden of proof as to the required practice of his creed or religion.” This court construed G. L. c. 15IB, § 4 (1A), in Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 771 (1986). We held, “The statute does not deal with the full panoply of religious beliefs, practices, preferences, and ideals. . . . The application of the statute is much more narrow. It prohibits an employer from requiring an employee, as a condition of employment, to violate or forgo the practice of her religion as required by that religion. It follows that the threshold showing an employee must make is whether the activity sought to be protected is a religious practice and is required by the religion.” (Emphasis in original.) Id. at 771-772. Later, in Kolodziej v. Smith, 412 Mass. 215 (1992), in which the plaintiff sought damages and other relief “on the ground that the defendants made her retention of employment conditional on her forgoing the practice of her ‘creed or religion as required by that creed or religion’ in violation of G. L. c. 15 IB, § 4 (1A),” id. at 216, we held that the judge in the Superior Court had correctly directed verdicts for the defendants on that claim. We reasoned as follows: “In Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 771 (1986), we observed that this ‘statute does not deal with the full panoply of religious beliefs, practices, preferences, and ideals,’ but focuses instead on required religious practices. The plaintiff produced no evidence that the defendants’ condition for her continuing as controller, attendance at the seminar, required her to miss any religious service or to compromise her faith. There was no evidence that Roman Catholic dogma forbade her attendance at the seminar.” (Emphasis in original.) Id. at 221. The plaintiffs’ brief in the present case states that “[t]his appeal presents a direct challenge to this Court’s recent interpretations of c. 15 IB, § 4 (1A), which hold that the only religious beliefs protected by the employment discrimination statute are those that are required by the dogma of an established religion. This interpretation of the statute denies protection to employees whose sincere religious beliefs differ from the established dogma of their religion or are not accepted as dogma by any religion. Such an interpretation violates the Establishment Clause of the First Amendment to the United States Constitution and Article 2 of the Declaration of Rights.” The plaintiffs’ contention that, in Lewis v. Area II Homecare for Senior Citizens, Inc., supra, and Kolodziejv. Smith, supra, this court misconstrued c. 15IB, § 4 (1A), is based entirely on their argument that, so construed, the statute is unconstitutional. The plaintiffs then conclude as follows: “To salvage the constitutionality of the statute it must be applied broadly to protect holders of all religious beliefs, not just those who follow the dogma of an established religion. Applied in that manner, since the plaintiffs have proven that the dictates of their own consciences and their religious beliefs founded on those dictates prohibited them from working on what to them was the most holy day of the year, and since their employer fired them for refusing to violate their religious beliefs, they were entitled to summary judgment as to liability.” No question concerning the constitutionality of c. 15IB, § 4 (1A), was raised in Lewis or Kolodziej. That question is presented to this court for the first time in this case. As we shall explain later in this opinion, we agree that G. L. c. 15 IB, § 4(1 A), as construed by this court in those cases, and as we construe it in this case, is unconstitutional. We do not agree with the plaintiffs, however, that the appropriate remedy is for us to interpret the statute as “protecting] holders of all religious beliefs, not just those who follow the dogma of an established religion.” Instead, we conclude that the plaintiffs’ reliance on that statute, unconstitutional as it is, is unwarranted. “[Statutes are to be construed so as to avoid an unconstitutional result or the likelihood thereof,” Adamowicz v. Ipswich, 395 Mass. 757, 763-764 (1985), but only “if reasonable principles of interpretation permit it.” School Comm, of Greenfield v. Greenfield Educ. Ass’n, 385 Mass. 70, 79 (1982). “We must construe the statutes as they are written.” Brennan v. Election Comm’rs of Boston, 310 Mass. 784, 789 (1942). “The scope of the authority of this court to interpret and apply statutes is limited by its constitutional role as a judicial, rather than a legislative, body. See art. 30 of the Massachusetts Declaration of Rights. In construing a legislative enactment, it is our duty to ascertain and implement the intent of the Legislature. . . . We cannot interpret a statute so as to avoid injustice or hardship if its language is clear and unambiguous and requires a different construction. Milton v. Metropolitan Dist. Comm’n, 342 Mass. 222, 227 (1961).” Rosenbloom v. Kokofsky, 373 Mass. 778, 780-781 (1977). “As Justice Qua stated in Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945), this court is under a duty ‘to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions.’ ” Commonwealth v. A Juvenile, 368 Mass. 580, 595 (1975). “Statutory language is the principal source of insight into [legislative purpose. Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977).” Commonwealth v. Lightfoot, 391 Mass. 718, 720 (1984). General Laws c. 15 IB, § 4 (1A), declares unlawful an employer’s imposition on an employee of “terms or conditions, compliance with which would require such individual to violate, or [forgo] the practice of, his creed or religion as required by that creed or religion” (emphasis added). In order to construe 15 IB, § 4 (1A), as protecting “holders of all religious beliefs, not just those who follow the dogma of an established religion,” as urged by the plaintiffs, we would be required to ignore, that is, treat as surplusage, the words “as required by that creed or religion.” It is unlikely that the Legislature intended such a result. See Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85 (1946) (“None of the words of a statute is to be regarded as superfluous . . .”). The effect of the quoted statutory language is to limit the application of the statute to persons whose practices and beliefs mirror those required by the dogma of established religions. To construe the statute as not containing such limitation “would be to engage in a judicial enlargement of the clear statutory language beyond the limit of our judicial function. We have traditionally and consistently declined to trespass on legislative territory in deference to the time tested wisdom of the separation of powers as expressed in art. xxx of the Declaration of Rights of the Constitution of Massachusetts even when it appeared that a highly desirable and just result might thus be achieved. King v. Viscoloid Co., 219 Mass. 420, 424-425 [1914]. Simon v. Schwachman, 301 Mass. 573, 581-582 [1938]. We will not do so now.” Dalli v. Board of Educ., 358 Mass. 753, 759 (1971) (declining to construe language in vaccination statute exempting persons subscribing to “the tenets and practice of a recognized church or religious denomination” to include others whose sincerely held religious beliefs nevertheless conflict with vaccination). We come now to our discussion of the constitutionality of G. L. c. 151B, § 4 (1A). The First Amendment to the United States Constitution, which applies to the States through the Fourteenth Amendment, Everson v. Board of Educ. of Ewing, 330 U.S. 1, 15-16 (1947); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides in pertinent part that “Congress shall make no law respecting an establishment of religion.” A statute that prefers one or more religions over another violates the establishment clause. School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 381 (1985). Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985). Larson v. Valente, 456 U.S. 228, 245 (1982). Also, “in order for a belief to be a protected religious belief, it is not necessary that it be shared by an organized sect or church.” Kolodziej v. Smith, supra at 220. “If [religious] beliefs be sincerely held they are entitled to the same protection as those more widely held by others.” Dalli v. Board of Educ., supra at 758. Thus, G. L. c. 15IB, § 4 (1A), which distinguishes between (1) an individual’s sincerely held religious belief that is shared with others belonging to an organized church or sect and (2) a belief that is not similarly shared, violates the establishment clause. General Laws c. 15IB, § 4 (1A), also offends the establishment clause by promoting excessive governmental entanglement with religion. Courts avoid such entanglement by abstaining from the resolution of controversies regarding religious matters. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 718 (1976). Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 450 (1969). See Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir. 1978) (stating, in interpreting Title VII provisions prohibiting employment discrimination based on religion, that “to restrict the act to [protecting only] those practices which are mandated or prohibited by a tenet of the [plaintiff’s] religion . . . would frequently require the courts to decide whether a particular practice is or is not required by the tenets of the religion. We find such a judicial determination to be irreconcilable with the warning issued by the Supreme Court in Fowler v. Rhode Island, [345 U.S. 67, 70 (1953),] ‘[I]t is no business of courts to say . . . what is a religious practice or activity . . .’ ”). This doctrine is directly related to the establishment clause’s essential purpose, which is to assure that government maintains “a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Walz v. Tax Comm’n of the City of N. Y., 397 U.S. 664, 669 (1970). See Alberts v. Devine, 395 Mass. 59, 72, cert, denied sub nom. Carroll v. Alberts, 474 U.S. 1013 (1985) (“First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine, discipline, faith, or internal organization”); Wheeler v. Roman Catholic Archdiocese, 378 Mass. 58, 63-64, cert, denied, 444 U.S. 899 (1979) (dismissing complaint seeking imposition of trust on church property because statements in earlier cases “suggesting generally that the courts should be less reluctant to intervene in cases [touching religious matters] involving property rights or personal rights were written before the teachings of more recent relevant Supreme Court opinions, particularly Serbian E. Orthodox Diocese, were available,” and because “sound policy dictates that the denominations, and not the courts, interpret their own body of church polity”), cert, denied, 444 U.S. 899 (1979); United Kosher Butchers Ass’n v. Associated Synagogues of Greater Boston, Inc., 349 Mass. 595, 598 (1965) (courts will not interfere in a controversy which is exclusively or primarily of an ecclesiastical nature); Moustakis v. Hellenic Orthodox Soc’y, 261 Mass. 462, 466 (1928) (“It is not the province of civil courts to enter the domain of religious denominations for the purpose of deciding controversies touching matters exclusively ecclesiastical”). General Laws c. 15 IB, § 4 (1A), effectively compels courts, in cases where the dogma of an established church or religion is disputed, to ascertain the requirements of the religion at issue. This may occur in connection with a trial with or without a jury or, as here, in connection with rulings on motions for summary judgment. We conclude that G. L. c. 15IB, § 4 (1A), construed as we have concluded it must be construed, would require our courts in this case to determine what actions and beliefs are required of adherents to the Roman Catholic faith. These are not proper matters for the courts to decide. For this reason, in addition to its preference of religious beliefs and practices that are shared by organized churches over those not so shared, we conclude that § 4 (1A) violates the establishment clause of the First Amendment. The plaintiffs’ claims grounded on G. L. c. 15 IB, § 4 (1A), therefore, must fail. The plaintiffs rely on G. L. c. 93, § 102, the Massachusetts Equal Rights Act, as well as on G. L. c. 15IB, § 4 (1A). In their brief, the plaintiffs do little more than assert in conclusory fashion that the judge in the Superior Court should have analyzed their c. 93, § 102, claim “under the more strict requirements of art. 2 [of the Massachusetts Declaration of Rights].” The plaintiffs’ treatment of that issue is insufficient appellate argument. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). Judgment affirmed. We need not consider or discuss the plaintiffs’ assertion that c. 15 IB, § 4 (1A), as we construe it, also violates art. 2 of the Massa