462 Mass. 1 - MCAD Brief - Mass Cases

COMMONWEALTH OF MASSACHUSETTS 

SUPREME JUDICIAL COURT 

Docket No. SJC-10898 

D.A.R. No. 19350 

Appeals Court No. 2010-P-2028 

SOPHIE C. CURRIER et. a1 

Plaintiff-Appellants, 

V. 

NATIONAL BOARD OF MEDICAL EXAMINERS, 

Defendant-Appellee and Cross-Appellant 

ON APPEAL FROM JUDGMENT OF THE NORFOLK SUPERIOR COURT 

AMICUS CURIAE BRIEF AND ADDENDUM OF THE 

MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION 

Simone R. Liebman, Esy. 

BE0 NO. 564614 

Catherine C. Ziehl, Esq. 

BBO NO. 563840 

Massachusetts Commission 

Against Discrimination 

One Ashburton Place 

Room 603. 

Boston, MA 02108 

(617) 994-6000

TABLE OF CONTENTS 

* 

i. TABLE OF AUTHORITIES . . . . . . . . . . . . iii 

I. STATEMENT OF THE ISSUES . .......... 1 

11. STATEMENT OF INTEREST OF THE AMICUS CURIAE . . 3. 

111. STATEMENT OF THE CASE . . . . . . . . . . . . 4 

A.PROCEDURAL BACKGROUND . . . . . . . . . . . 4 

B. FACTUAL BACKGROUND . ........... 5 

IV. SUMMARY OF THE ARGUMENT . .......... 16 

V. ARGUMENT . ................. 17 

A. THE LEGISLATURE INTENDED FOR THE PUBLIC 

ACCOMMODATION ACT TO APPLY TO A 

BROAD RANGE OF "PLACES" AND TO PROSCRIBE 

ANY CONDUCT WHICH RESTRICTS ACCESS 

ON THE BASIS OF A PROTECTED CLASS OR CUSS 

CHARACTERISTIC . . . . . . . . . . . . . . 17 

El. THE NATIONAL BOARD OF MEDICAL EXAMINERS 

IS SUBJECT TO THE MASSACHUSETTS PUBLIC 

ACCOMMODATIONS ACT . . . . . . . . . . . . . 23 

1. THE NBME IS A PROVIDER OF TESTING 

SERVICES IN MASSACHUSETTS AND 

THEREFORE, A PLACE OF PUBLIC 

ACCOMMODATION 'UNDER THE ACT . . . . 23 

2. THE NBME IS A PLACE OF PUBLIC 

ACCOMMODATION DUE TO ITS UNIQUE ROLE, 

SERVING THE NEEDS OF MASSACHUSETTS' 

MEDICAL LICENSING BOARD AND PROTECTING 

THE HEALTH OF THE GENERAL PUBLIC . ... 27 

3. THE NBME AIDED OR INCITED 

DISCRIMINATORY PRACTICES ON ACCOUNT 

OF GENDER, RENDERING IT LIABLE UNDER 

THE PUBLIC ACCOMMODATIONS ACT . . . . . 30 

i

C. THE NBME MADE A DISTINCTION, DISCRIMINATION 

OR RESTRICTION BASED ON GENDER AND DENIED 

DR. CURRIER FULL AND EQUAL ACCOMMODATIONS, 

ADVANTAGES, FACILITIES AND PRIVILEGES IN 

VIOLATION OF THE ACT . ............ 31 

1. DISTINCTIONS, DISCRIMINATION AND 

RESTRICTIONS BASED ON BREAST-FEEDING 

ARE GENDER-BASED . . . . . . . . . . . . . . 31 

2.THE NBME'S REFUSAL TO PROVIDE ADDITIONAL 

BREAK TIME TO CURRIER DENIED HER 

FULL AND EQUAL ACCESS TO THE EXAMINATION . . 34 

3. THE NBME'S REFUSAL TO PROVIDE ADDITIONAL 

BREAK TIME TO CURRIER DENIED HER ACCESS TO 

THE EXAMINATION ON EQUAL TERMS WITH OTHER 

TEST-TAKERS . . . . . . . . . . . . . . . . 43 

4.THE NBME'S FAILURE TO ASSERT AND 

SUPPORT WITH EVIDENCE ANY REASON FOR 

DENYING DR. CURRIER ADDITIONAL BREAK TIME 

SHOULD LEAD TO A FINDING OF LIABILITY 

UNDERTHEACT. . ............. 45 

5.THE NBME'S POLICY OF MAKING EXAM 

FORMAT CHANGES ONLY FOR ADA-DISABILITIES 

DENIES AND RESTRICTS A LACTATING WOMAN'S 

ABILITY TO TAKE THE MEDICAL EXAMINATION . . 47 

VII. CONCLUSION . ................ .50 

CERTIFICATE OF COMPLIANCE . . . . . . . Certificate 1 

CERTIFICATE OF SERVICE . . . Certificate of Service 1 

ADDENDUM . . . . . . . . . . . . . . . . MCAE ADDENDUM 

ii

Cases 

TABLE OF AUTHORITIES 

Att'y Gen. v. Bailey, 

386 Mass. 367, 371,cert deniedsub. nom. 

Bailey v. Bellotti, 459 U.S. 970 (1982). . . 36 

Bachner v. Mass. Bay Transp. Auth., 

22 Mass. Discrimination Law Rep. 183 (2000). . 44 

Barbot v. Yellow Cab Co., 


Bowers v. Nat. Collegiate Athletic Ass'n, 

151. F. Supp. 2d 526 (D. N.J. 2001) . . . . . 28 

Brady v. Art-Cement Prods. Co., 

11 Mass. Discrimination Law Rep. 1053 (1989) . 31 

Bruneau v. G&G Lambert's, fnc., 

26 Mass. Discrimination Law Rep. 43 (2004) . . 44 

Bryant v. Rich's Grill, 

216 Mass. 344 (1914) . . . . . . . . . . . . 18 

Bynes v. School Comm. of Boston, 

411.Mass. 264 (1991) . . . . . . . . . . . . 2 

Carparts Distrib. Ctr., Inc. v. Automotive 

Wholesaler'sAss'n of New England, 

37 F.3d 12 (1st Cir. 1994). . ......... 25 

Carpenter v. Yellow Cab Co, 


Concord Rod & Gun Club, Inc. v. Mass. 

Comm'n Against Discrimination, 

402 Mass. 716 (1988) . ...... 17, 18, 21, 22 

Commonwealth v. %, 

444 Mass. 640 (2005) . . I 

. 

. . 27 

Commonwealth of Mass. Office of the 

Attorney General v. Fung Wah Bus 

Transp., InC., 29 Mass. Discrimination 

Law Rep. 95 (2007) . ............. 49 

iii


Cummings v. Safeguard Security, 


Dahill v. Police Dep’t of Boston, 

434 Mass. 233 (2001) . . . . . . . . . . . . . 37 

Dottin v. Univ. of Mass. at Amherst, 

22 Maes. Discrimination Law Rep. 404 (2000). . 44 

Frank v. Ivy Club, 120 N.J. 73 (1990), 

cert. denied sub nom., Tiger Inn v. Frank, 

498 U.S. 1073 (1991). . ........... 29 

Franklin v. Order of United Commercial Travelers 

of America, 590 F. Supp. 255 (D. Mass. 1984) . 29 

Gu v. Boston Police Dep‘t, 

312 F.3d 6 (2002) . . . . . . . . . . . . . . 39 

Bassan v. City of Boston, 

20 Mass. Discrimination Law Rep. 83 (1998) 

..... 24, 44 

Heart of Atlanta Motel v. United States, 

379 U.S. 241 (1964) . ............ 34 

Irish-American Gay, Lesbian and Bisexual Group 

of Boston v. City of Boston, 418 Mass. 238 

(1994),rev’d on other grounds sub nom. 

Hurley v. IrishAmerican Gay, Lesbian, 

and Bisexual Group of Boston, 

515 U.S. 557 (1995) . ........... .24 

Jones v. City of Boston, 

38 F. Supp. 604 (D. Mass. 1990 

Joyce v. Town of Dennis, 

705 F. Supp. 2d 74(D. Mass. 20 

docketed,No. 11-1928 

(1st Cir. Aug. 16, 2011) + . . 

King v. Greyhound Lines, Inc., 

61 Or. App. 197 (1982) . . . 

iV 

. . . . . . .44 

0), appeal 

...... 42, 47 

. . . . . . . .44


Lacava v. Lucander, 58 Mass. App. Ct. 527, 

534 (2003) . . . . . . . . . . . . . . . . . . 20 

Local Fin. Co. of Rockland v. Mass. Comm'n 

Against Discrimination, 

355 Mass. 10 (1968) . . . . . . . . . . . passim 

Lynn Teachers Union, Local 1037 v. Mass. Comm'n 

Against Diacrirnination, 406 Mass. 515 (1990) . . 

. . . . . . . . . . . . . . . . . . . . . . . 33 

Mass. Comm'n Against Discrimination 

& Another v. MAC, MCAD Docket 06-BPA-03215 . . 2 

Mass. Comm'n Against Discrimination 

& Another v. Prometric, Inc. and ETS, 

MCAD Docket 08-BPA-03259 . .......... 2 

Mass. Elec. Co. v. Mass. Comm'n Against 

Discrimination, 375 Mass. 160 (1978) . .... 

Nathanson v. Mass. Comrn'n Against Discrimination, 

16 Mass. L. Rep. 761 (2003) . . . . . . . . . 25 

Nat. Fed'n of the Blind v. Target Corp., 

452 F. Supp. 2d 946, 953 (N.D. Cal. 2006) . . 25 

Olzman v. Lake H ills Swim Club, Inc., 

495 F.2d 1333 (2d Cir. 1974) . . . . . . . . . 49 

Pares v. Walee Fuel Injections, 


Pendarvis v. Roseland Int'l, 

22 Maas. Discrimination Law Rep. 276 (2000). . 44 

Robinson v. Power Pizza, 993 F. Supp. 1462 

(M.D. Fla. 1998). . ............. 49 

Saint Louis v. La Reine Boutique, 


Sarnartin v. Metro. Life Ins. Co., 

2005 WL 2993469 (MCAD Aug. 18, 2005) . .. 24, 34 

V 

31


Sch. Comm. of Braintree v. Mass. Comm'n Against 

Discrimination, 377 Mass. 424 (1979) . . . 33, 48 

Sch. Comm. of Brockton v. Mass. Comm'n Against 

Discrimination, 317 Mass. 392 (1979) . . . . . 33 

Seidman v. Commodore's Club of America, 


Sutton v. United Air Lines, 

527 U.S. 471 (1999) . . . . . . . 37 

Thomas v. Eastman Kodak Company, 

183 F.3d 38 (1st Cir. 1999) . . . . . . . . . 38 

Trustees of Health & Hosps. of the City of 

Boston, Inc. v. Mass. Comm'n Against 

Discrimination, 449 Mass. 675, 686 (2007) . . 40 

United States Jaycees v. Mass. Comm'n Against 

Discrimination, 331 Mass. 594 (1984) . . . 23, 26 

Varona v. City of Boston Parks Dep't, 


Wilder v. Diamond Cab Co., 

23 Mass. Discrimination Law Rep. 65 (2001). .44 

Wynn & Wynn, P.C. v. Massachusetts Comm'n Against 

Discrimination, 431 Mass. 655 (2000) . . . . . 27 

Statutes 

G.L. c. 111, 5 221 ............. 3, 32, 45 

G.L.c.l51B, § 5 . . . . . . . . . . . . . . . . . 2 

G.L. c. 151B, 5 9 . . . . . . . . . . . . . . . 2, 18 

G.L. c. 272, 5 92A . . . . . . . . . . 2, 24, 27, 30 

G.L. c. 272, 5 98 . . . . . . . . . . . . . . .passim 

G.L.C.272,§98A. ................ 2

Statutes 

Or. Rev. Stat. § 653.077 (2009) 9, 33 

Session Laws 

St. 1865, c. 277 . . . . . . . . . . . . . . . 18, 19 

St. 1882, c. 207 § 69 . . . . . . . . . . . . . . . 18 

St. 1893, c. 436 . . . . . . . . . . . . . . . . . 19 

St. 1895, c. 461, § 1 . ............ 19, 30 

St. 1933, c. 117 . .............. 19, 30 

St. 1950, c. 479 . . . . . . . . . . . 18, 19, 22, 34 

St. 1953, c. 437 . . . . . . . . . . . . . . . 20, 21 

St. 1971, c. 418 . . . . . . . . . . . . . . . . . 21 

St. 1978, c. 331. . . . . . . . . . . . . . . . . 21 

Civil Rights Act of 1875, ch. 114, 18 Stat. 335, 

invalidated byTheCivil Rights Cases, 

109 U.S. 3 (1883) . . . . . . . . . . . . . . 22 

Regulations 

243 Code Mass. Regs. 2.02 . . . . . . . . . . . 7, 21 

Journal Articles 

Sol Rabkin, Next Steps in Racial Desegregation 

in Education, 23 J. of Negro 

Educ. 249 (1954) . . . . . . . . . . . . . . . 18 

Annual Reports 

Commonwealth of Massachusetts Board of 

Registration in Medicine, 

Annual Report 2010 . .............. 7 

vi i

Dictionary 

MacMillan English Dictionary (2011). + . . . . . .20 

viii

I. STATEMENT OF THE ISSUES 

The Supreme Judicial Court has solicited amicus briefs 

on the following question: 

A medical school graduate requested additional break 

time while taking the United States Medical Licensing 

Exam in order to express breast milk for hex infant; 

the National Board of Medical Examiners (NBME) denied 

her request. whether the denial violated the doctor's 

fundamental rights under Articles 1, LO and 12 of the 

Massachusetts Declaration of Rights; whether the NBME 

refusal to accommodate the doctor violated the 

Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H- 

111; the Massachusetts Equal Rights Act, G. L. c. 93, 

5 102; and the Massachusetts Public Accommodation Act, 

G. L. c. 272, 55 92A, 98; whether the NBME is a state 

actor by reason of its involvement in the medical 

licensing process. 

11. STATEMENT OF INTEREST OF THE AMICUS CURIAE 

The Massachusetts Commission Against Discrimination 

("the Commission" or ''MCAD") submits this brief as an 

amicus curiae pursuant to Rule 17 of the Massachusetts 

Rules of Appellate Procedure on the limited question of 

whether denying a lactating test-taker additional break 

time violated the Massachusetts Public Accommodation Act 

("the Act"), G.L. c. 272, 55 92A, 98. The Legislature has 

delegated to the Cornmission the responsibility of enforcing 

the Public Accommodation Act. Any person who is 

"aggrieved" by an alleged violation of G.L. c. 272, §§ 92A, 

98 or 98A, can file a complaint with the Commission and the 

Commission will investigate, conciliate and adjudicate the 

. . . . . . . .. . . . . 

1 

. . . . . .

matter under the procedures set forth in Chapter 151B and 

where appropriate, order affirmative relief calculated to 

effectuate the equal opportunity purposes of the Act. G.L. 

c. 272, 55 92A, 98, 98A; G.L. c. 151B Si 5. With the 

integration of the Act into Chapter 151B, the Legislature 

also delegated to the Commission the authority in the first 

instance of interpreting and determining the scope of its 

various provisions. Bynes v. School Comm. of Boston, 411 

Mass. 264, 269 (1991) (Commission's interpretation of its 

governing statute is "entitled to substantial deference"). 

The issue before this Court is of particular concern 

to the Commission because the Commission has exercised 

jurisdiction over similar cases and believes that the 

remedial purposes of the Act are furthered by interpreting 

it "liberally" to include the restrictive and 

discriminatory practices of professional licensing 

examination administrators.' ~ 

See G. L. c. 151B, S 9. The 

The Commission has exercised jurisdiction over complaints 

filed under the Act from test-takers who claimed that their 

ability to take standardized examinations on equal footing 

with non-disabled test-takers has been impaired by the 

decisions delegated to professional examination companies 

who serve as gate-keepers to professions. In two recent 

cases, the Commission has enforced the Act following 

determinations of probable cause, establishing through 

settlement new policies eliminating barriers generated by 

the Law School Admissions Test and the Graduate Record 

Examination. Mass. Comm'n Aqainst Discrimination & Another 

v+ LSAC, MCAE Docket 06-BPA-03215; Mass. Comm'n Against 

2

Commission has an interest in ensuring that national 

testing companies like the National Board of Medical 

Examiners ("NBME") that act as gate-keepers to professions 

(or professional schools) neither "make" nor "aid[] or 

incite [I " "any distinction, discrimination, or restriction 

on account of . . . sex" or other protected class 

characteristic. G.L. c. 272, 5 98. The Public 

Accommodations Act establishes that "all" persons have the 

right to the "full and equal accommodations, advantages, 

facilities and privileges" in a place of public 

accommodation and that this right is "subject only to the 

conditions and limitations established by law and 

applicable to all persons." - Id. Far from imposing 

"conditions and limitations" on the rights of breastfeeding 

women, the Massachusetts Legislature has passed a law 

protecting their right to do so in a "public place", 

therefore establishing that breastfeeding is an important 

public health policy of the Commonwealth. G.L. c. 111, § 

221. Because lactation is a uniquely sex-based 

characteristic, the NBME's blanket refusal to consider 

requests for changes in the test format so that lactating 

women can take the examination on equal footing with other 

Discrimination v. Prometric, Inc. and ETS, MCAD Docket No 

08-BPA-03259. 

3

non-lactating test-takers, violates the Public 

Accommodation Act and Massachusetts' public health policy. 

A. Procedural Background 

111. STATEMENT OF THE CASE 

On September 5, 2007, Ms. Currier filed this action 

seeking an injunction requiring the NBME to provide 

additional break time to enable her to express milk during 

Step 2 CK of the USMLE ("the Examination") .' Vol. I, Record 

Appendix (cited as Vol. -, RA -") 301-314. When the 

Superior Court (Brady, J.) denied Ms. Currier's motion for 

preliminary injunction, Me. Currier appealed to the Single 

Justice of the Appeals Court. The Single Justice 

(Katzmann, J.) held that the NBME's policy "disparately 

impacts [Dr. Curries] as a breastfeeding woman" and that 

the NBME's "willingness to accord other test-takers 

additional break time, but not [Dr. Currier], is in effect 

consistent with an intent to discriminate . . ." Vol. I, 

RA 350-351. The Single Justice vacated the Superior 

Court's denial of a preliminary injunction and entered a 

preliminary injunction against the NBME requiring it to 

afford Me. Currier an additional sixty (60) minutes of 

break time. Vol. I, RA 330-356. A full panel of the 

2 

There are three phases, or steps of the USMLE. Step 2 CK 

is the second phase, and tests clinical knowledge. Brief in 

Support of Defendant-Appellee NBME ("NBME Brief) p. 5. 

4

Appeals Court affirmed the Single Justice's Order and upon 

appeal, this Court denied further appellate review. Vol. 

11, RA 695-700. 

The action then proceeded on the merits in Norfolk 

Superior Court. The Superior Court (Sanders, J.) denied 

the NBME's Motion €or Partial Judgment on the Pleadings, 

rejecting the NBME's argument that the case was moot, 

stating that '[blreastfeeding is a right secured by the 

Constitution ac laws of this Commonwealth, either because 

it is rooted in notione of privacy or because there is a 

right to be treated equally regardless of one's gender." 

Vol. 111, FA 1107. On July 26, 2010, the Superior Court 

(Connors, J.) ("Trial Court") ruled on the parties' cross- 

motions for summary judgment and held that the matter was 

not moot, but granted summary judgment to the NBME 

concluding that the NBME's failure to provide additional 

break time to nursing mothers did not violate the law. 

Vol. I, Ra 14-34. Ms. Currier appealed to the Appeals 

Court and applied to the Supreme Judicial Court for direct 

appellate review. The Supreme Judicial Court granted 

direct appellate review and requested amicus filings. 

B. Factual Background 

The NBME is a non-profit organization, which, together 

with the Federation of State Medical Boards of the United 

5

States, Inc. ("FSMB"), co-sponsors the Examination. The 

NBME is organized as a tax-exempt educational organization 

with the stated purpose of "protecting the health of the 

public nationally and internationally through state of the 

art assessment of health professionals . . . " VOl. 111, 

RA 1131. The Massachusetts Board of Registration of 

Medicine (the "Board") has given the NBME the authority to 

determine the scope of the Examination, including the 

selection of medical content to be formally assessed as a 

precondition for medical licensure, the testing structure 

and the minimum score for passing. Vol 111, RA 1150-1153; 

Vol. 11, RA 117, Vol. I, FA 17. The NBME, by creating the 

Examination, provides all state medical licensing boards 

with a common evaluation system for applicants for medical 

licensure and a "single pathway" for all graduates of 

medical schools in the United States and Canada. Vol. 11, 

RA 624, 523. The NBME itself describes the "critical role" 

that the examination plays as a "keystone" in licensing 

medical doctors. Vol. 111, RA 1099. 

In Massachusetts, the USMLE is the only examination 

qualifying medical students for Massachusetts licensure. 3 

While the Massachusetts regulations appear to offer 

applicants choices about which examination they may take, 

these alternative testing options no longer exist and 

therefore, the USMLE is the examination all students from 

6

It is administered at Prometric, a testing center located 

in Brookline, Massachusetts. Vol. I, RA 187. The Board has 

delegated to the NBME the responsibility for considering 

and responding to requests from test-takers for changes in 

the testing format, including requests for an 

accommodation(s) under the Americans with Disabilities Act 

of 1990 ('ADA"). The NBME policy Tor "granting extra time, 

breaks or other test format changes" is to do so "only for 

[ADA] covered disabilities." Val. I, RA 400. The 

Commission conservatively estimates that the number of 

individuals in Maasachusetts who take the Examination on an 

annual basis is at least two thousand based on the number 

4 

of physicians actually licensed each year in Massachusetts. 

On June 19, 2007, Dr. Currier, a medical student 

scheduled to graduate from Harvard Medical School with a 

American medical students must take to become allopathic 

physicians in Massachusetts. - See 243 Code Mass. Regs. S 

Z.OZ(2) (a); Vol. I, RA 417. The USMLE has replaced the 

Federation Licensing Examination (FLEX) and the NBME 

"Board" exams referenced in 243 CMR 5 2.02. Vol. IL, RA 

626. Osteopathic physicians may take a different 

examination and in order to practice in Canada, some 

medical students take the Medical Council of Canada 

Qualifying Examination. 

Annually, there are approximately 2,000 new licensees in 

Massachusetts. MCAD Addendum, attached hereto, at 239 

(Commonwealth of Massachusetts Board of Registration in 

Medicine, Annual Report 2010, p. 16). In 2010, there were 

33,111 licensed doctors in Massachusetts: 21,184 were male 

and 11,927 were female. MCAD Addendum 229. 

. . . . . .. .. 

-

doctorate in medicine, wrote the Medical Licensing 

Examination Secretariat and requested additional break time 

for the specific purpose of expressing milk when she took 

Step 2 of the Examination. Vol. 111, RA 1168. She 

explained that she was breastfeeding her infant every two 

to three hours during the day and that in order to prevent 

blocked ducts and mastitis, which entails pain, reddening, 

swelling, infection and low-grade fever, she would 

"absolutely need to express [her] milk likewise every 3 

hours." Vol. 111, RA 1168; Vol. 11, RA 552-556. She 

further explained that expressing milk can take up to 

thirty minutea including set up and clean up time and that 

the standard amount of break time "is absolutely not 

sufficient for expressing milk" during this nine (9) hour 

examination.5 VoL. 111, FA 1168. Dr. Currier cold the NBME 

that she would be taking the exam over two consecutive days 

due to her Attention Deficit Hyperactivity Disorder (ADHD) 

and dyslexia, and that this made additional break time to 

Dr, Currier requested twenty minutes of additional time 

baaed on her assumption that she had forty minutes of break 

time. Her initial request was €or sixty minutes of break 

to allow her two thirty minute breaks to express breast 

milk. Upon hiring counsel, she recognized the need for 

additional break time in order to address other bodily 

needs, such as eating and using the restroom. Dr. 

Currier's Addendum ADD-^") at 82-83. 

8

allow for periodic expression of milk even more of a 

”medical necessity.’’ Vol. 111, E4 1168. 

On July 11, 2007, the NBME denied this request, 

stating instead that Dr. Currier could pump in the standard 

forty-five minutes by skipping the fifteen minute tutorial 

on Day 1 of the Examination and using it along with the 

standard forty-five minutes of break time, to pump, and on 

Day 2, by pumping for shorter than thirty minutes: once for 

twenty-five minutes and once for twenty minutes. Vol. 111, 

R& 1174-1175. This schedule required Dr. Currier to skip 

the tutorial, a description of the examination that all 

other test-takers would have the opportunity to review. It 

further demanded that she pump in less time than the thirty 

minutes Dr. Currier required.6 Finally, it required her to 

use every minute of her forty-five minute break to pump, 

allowing no time to use the restcoom, eat or stand up. 

Three expert affidavits have been submitted averring that 

a nursing mother with a four month old infant needs two 

thirty minute breaks during a nine hour examination, to 

avoid a host of aerious medical complications. Vol. 11, RA 

552-556; Vol. 111, RA 985-989 (Affidavit of Allison Stuebe, 

a clinical fellow in maternal-fetal medicine at Brigham and 

Women’s Hospital, who has written extensively on the 

medical benefits of breastfeeding); Vol. 111, RA 1086-1090 

(Affidavit of Marsha Walker, a Registered Nurse who served 

as president of the International Lactation Consultants 

Association and Executive Director of the Research, 

Education and Legal Branch of the National Alliance for 

Breastfeeding Advocacy), See also Or. Rev. Stat. 9 653.077 

(West 2009) (requires employers to provide at least thirty 

minutes to breastfeed for each four-hour work period). 

9

Vol. 111, RA 1175. Dr. Currier responded through counsel, 

and explained again the medical complications that can 

result when there is a failure to express milk every three 

hours. She requested a private room with an outlet and 

asked for sixty additional minutes of break time which 

would allow her two thirty-minute breaks to express milk, 

and the standard forty-five minutes to take a break like 

every other individual sitting for the Exam. ADD-82-83. 

On August 16, 2,007, the NBME again denied additional 

break time, stating that it provides additional break time 

only under the ADA to allow persons with documented 

disabilities to “have access to take the exam on an equal 

footing” with those who do not have a disability. Vol. 

111, FA 1170. Because lactation is not a disability, the 

NBME refused Dr. Currier’s request for additional break 

time and ”suggested“ that she postpone the exam to “a time 

most convenient to [her] professional and personal 

commitments and schedules.” Vol. III, RA 1170-1171. On 

August 24, 2007, counsel for Dr. Currier again sought to 

resolve the issue explaining that pumping requires twenty- 

five to thirty minutes for pump assembly, hand washing, 

disrobing, pumping time, disassembly and cleaning and that 

the “private” room offered by the NBME, enclosed by three 

glass walls, would not provide sufficient privacy. ADD-90 

10

She further noted that unless the NBME agreed to provide 

Dr. Currier additional break time, Dr. Currier would be 

faced with the choice of using her break time solely for 

pumping and not eating, drinking or using the restroom, or 

not pumping and risking a variety of medical conditions. 

ADD-90. Counsel, on behalf of Dr. Currier, also took issue 

with the NBME's advice to Dr. Currier that she reschedule 

the examination for a time 'more convenient to her personal 

and professional commitments", because it "reinforces the 

discriminatory nature of the NBME's conduct'' by suggesting 

that she delay her career until she has completed nursing. 

ADD-91-92. Counsel noted that the NBME bad failed to 

provide a reason for denying additional break time and 

failed to raise any problems or concerns associated with 

providing additional break time.7 ADD-91-92. 

On August 28, 2007, the NBME again denied the request. 

Vol. 111, RA 1164. The NBME told Dr. Currler to submit 

documentation if 'her covered disability has changed in 

The NBME's Manager of Disability Services and ADA 

Compliance in Testing Programs stated in her affidavit that 

Dr. Currier's "request for additional time to express milk 

was denied consistent with NBME'a policy of granting extra 

time, breaks or other test format changes only for ADA 

covered disabilities." Vol. I, RA 400. She also stated, 

"to the extent that the request was solely based on Ma. 

Currier's desire to express milk, NBME's policy did not 

allow for alteration of the standard test or break time, as 

breastfeeding or expressing milk is not an ADA disability." 

Vol. I, FA 401. 

11

such a way that the current accommodation of double time is 

no longer appropriate [andl the NBME will promptly review 

and seriously consider her request for additional or 

different accommodations, with due regard for her needs as 

a disabled nursing mother . . .” Vol. 111, FA 1164. Short 

of couching her request under the umbrella of the ADA, the 

NBME refused to allow Dr. Currier additional break time for 

nursing because it would be “inconsistent“ with the goal. of 

”delivering a fair and valid examination.” Vol. 111, RA 

1165. Dr. Currier‘s counsel responded that she would not 

withdraw her request for the accommodations necessary for 

her disabilities in exchange for “prompt“ and ‘serious 

consider[ationl” of her request for additional break time. 

Vol. 111, RA 977 -979. She again explained that pumping 

breast milk twice over the course of a nine (9) hour day, 

using a restroom, eating and drinking require more than 

forty-five minutes. Vol. 111, RA 911-979. The NBME did 

not respond and this civil action was commenced. 

Over the course of discovery, the NBME produced 

documents evidencing several instances when it deviated 

from its policy of granting format changes for ADA 

disabilities only, and instead gave test-takers the 

“courtesy” of extra break time despite the NBME’s 

acknowledgement that these individuals were not disabled 

12

under the ADA. Vol. 111, Rh 911, The first request for a 

change in the test format was from a person suffering from 

Irritable Bowel Syndrome (IBS) who asked to take the 

Examination with extra break time over two days. Vol. 111, 

M 904. 

The NBME does not view IBS as a disability,’ but 

granted the request for additional break time anyway. Vol. 

111, RA 905. A second test-taker with a compression 

fracture was provided with additional break time despite 

the NBME‘s conclusion that the test-taker did not have a 

permanent disability under the ADA. Vol. 111, RA 911. 

Like Currier, she could not sit without a break for more 

than two to three hours per day due to her condition. Vol. 

TIT, RA 911. Despite its conclusion that this was not an 

ADA-covered disability’, the NBME provided her with a two 

day examination and despite the fact that the test-taker 

did not request it, gave the test-taker an additional 

thirty minutes of break time each day in addition to the 

standard forty-five minute break, for a total break time of 

’ The NBME has stated to this Court that it “consistently 

refuses to grant accommodations for . . . irritable bowel 

syndrome. . . _“ NBME Brief, p. 6. On its Decision 

Regarding Accommodations Requested form, it described IBS 

as a “temporary disability,“ and checked “other“ under 

Declared Disability. Vol. 111, M 905. 

’ On the Consultant Review Form, the NBME stated that the 

test-taker ‘does not at this time have a permanent 

disability . . . .” and indicates that she should fully 

recover within six months. Vol. 111, RA 911. 

13

seventy-five minutes each day. Vol. 111, RA 908, 911. In 

coming to this conclusion, the NBME stated that the “only 

other option would be to have her postpone her testing 

until her condition has improved, but this would interfere 

with her academic progress. I would support providing the 

accommodation as a courtesy to her.” Vol. 111, RA 911. In 

a third case, the NBME received a request from a foreign 

medical student who had pain in her right buttock, leg and 

foot and requested the opportunity to “spread out her 

testing time to give her an opportunity to stretch or lie 

down to relieve the pain.’’ Vol. 111, RA 932. The NBME 

concluded that she was not eligible under the ADA,1° but 

granted her extra time as a “courtesy” and allowed this 

applicant to take the exam over two days with an additional 

thirty minutes break each day. Vol. 111, RA 928-932.‘’ 

lo A note in this test-taker‘s file states, ”[tlechnically, 

we are not obligated under the law to [accommodate the 

test-taker because she is not a U.S. citizen and will not 

be testing in the U.S.1, but in the past, the Board has 

accommodated a non-U.S. citizen in a foreign testing 

location.” Vol. 111, RA 931. It also states that ”this 

condition is not yet established as a chronic disability 

and thus would not be covered (technically) under the ADA.” 

~ Id. Despite this, the accommodation was “granted as a 

courtesy” a8 recommended by the disability consultant on 

the Consultant Review Form. Vol. 111, RA 932. 

l1 The Commission, by reciting these examples of deviation 

from the ADA-only policy for testing format changes i s by 

no means expressing agreement with the NBME’s 

determinations in each case that a particular impairment 

was not a disability covered under the ADAS (or that a 

14

Because the NBME filed a motion for summary judgment 

and a request to stay discovery that: were both granted by 

the Trial Court before Dr. Currier completed her discovery, 

the record in this case has not been fully developed. Dr. 

Currier did not have the opportunity to depose a key 

witness, Catherine Farmer, the NBME's Manager of Disability 

Services and ADA Compliance Officer for Testing Programs, 

or Gerard Dillon, an employee of the NBME who serves as the 

Vice President of the Examination, to flesh out the details 

of these axceptions to NBME's policy.12 As a result, there 

is no testimony as to any other disabled applicants given 

additional break time and why the NBME granted break time 

in these cases. but denied the same to Dr. Currier. 

foreign student may not be entitled to an accommodation 

under the ADA). These examples are relevant because the 

NBME concluded the test-takers did not have ADA-covered 

disabilities, and nonetheless allowed extra break time, but 

did not do so in Dr. Currier's case. 

l2 During discovery, the NBME agreed to proceed with 

depositions noticed by Dr. Currier's counsel, including the 

deposition of Catherine Farmer, who would be deposed both 

personally and as NBME's corporate designee. Vol. 111, RA 

1200-1208. Shortly thereafter, and without notifying Dr. 

Currier's counsel of its intention to do so, the NBME 

served Defendant's Motion for Summary Judgment along with a 

request to stay discovery, both of which were granted. 

Vol. 111, RA 1200-1208. ~ See Brief for the Plaintiffs- 

Appellants Sophie C. Currier on Behalf of Herself and on 

Behalf of Lea M. Gallien-Currier ("Currier's Brief"), p. 4, 

n. 3 (detailing MS. Currier's unsuccessful efforts to 

strike Farmer and Dillon's affidavits). 

15

IV. SUMMARY OF THE ARGWNT 

The purpose of the Massachusetts Public Accommodation 

Act is to remove any obstacles to full and equal access, 

including those resulting from gender-based distinctions in 

'places" of public accommodation, where that term has been 

broadly interpreted and consistently enlarged by the 

Legislature. Pages 17-22. The NBME's delivery of testing 

services in Maseachusetts, the vital function that it 

serves as a gate-keeper for physicians in the Commonwealth 

and the control that it exercises over the administration 

of these examinations in Massachusetts brings the 

discriminatory administration of the Examination under the 

scope of the Act. Pages 23-30. Because lactation, like 

pregnancy, is a condition unique to women, lactation-based 

distinctions, discrimination or restrictions are prohibited 

by the Act. Pages 31-34. The NBME's reEusal to provide 

additional break time to Dr. Currier, a lactating test- 

taker, based on its policy of providing examination format 

changes only to individuals who are disabled under the ADA, 

denied Dr. Currier the "full and equal accommodations, 

advantages, facilities and privileges" secured by the Act. 

All breastfeeding women who have contracted for the 

services provided by the NBME and will sit for the medical 

16

examination it has written and administers, are entitled to 

do so on equal footing with the rest of the non-lactating 

test-taking population. Pages 34-42. The NBME's refusal 

to recognize and address the unequal testing conditions 

that arise for nursing mothers by considering format 

changes, where lactation is a gender-based characteristic, 

impedes their "civil right" to the full and equal 

accommodation, advantages, facilities and privileges of the 

testing process on account of sex and prevents lactating 

women from becoming licensed in their chosen professions, 

exposes them to substantially disadvantageous test-taking 

conditions and puts them at risk of medical complications, 

in violation of the Act. Pages 42-50. 

V. ARGUMENT 

A.THE LEGISLATURE INTENDED FOR THE PUBLTC ACCOmODATION 

ACT TO APPLY TO A BROAD RANGE OF "PLACES" AND TO 

PROSCRIBE ANY CONDUCT WHICH RESTRICTS ACCESS ON THE 

BASIS OF A PROTECTED CLASS OR CLASS CHARACTERISTIC. 

Massachusetts courts have adopted the MCAD's "broad, 

inclusive interpretation" of the Public Accommodations Act, 

in order to achieve the Act's remedial goal of eliminating 

and preventing discrimination. 

Concord Rod & Gun Club, 

- Inc. v. Mass. Comm'n Against Discrimination, 402 Mass. 716, 

720 (1988); Local Fin. Co. of Rockland v. Mass. Comm'n 

Against Discrimination, 355 Mass. 10, 14 (1968) ("Local 

17

Fin, Co of Rockland"). See also G.L. c. 151B, § 9 (chapter 

construed liberally to prevent discrimination). This "rule 

of liberal construction", Concord Rod & Gun Club, 402 Mass. 

at 720, is based on the broad language contained in the Act 

itself and the legislative intent that the Act extend 

widely, as evidenced by the continuous statutory amendments 

expanding (1) the unlawful practices proscribed by the Act, 

and range of persons responsible for engaging in these 

practices, (2) the definition of "place" of public 

accommodation, and (3) the rights of individuals which, as 

discussed below, were declared to be "civil rights" in 

1950. St. 1950, c. 479. 

Massachusetts was the first state, in 1865, to 

promulgate a public accommodation statute.13 Since its 

inception, the Act has proscribed a broad range of conduct 

by rendering unlawful any "distinction, discrimination or 

restriction" in a place of public accommodation. St. 1865, 

c. 217. In 1882, the Legislature expanded the reach of the 

Act to include any distinction, discrimination or 

restriction "in respect to the admission of any person to 

or his treatment in'' public places. St. 1882, c. 207, 569 

l3 Sol Rabkin, Next Steps in Racial Desegregation in 

Education, 23 J. of Negro Educ. 249, 250 (1954); Bryant v. 

Rich's Grill, 216 Mass. 344, 347 (1914) (Maasachusetts 

adopted public accommodation statute three *ars before the 

Fourteenth Amendment to the United States Constitution). 

18

(emphasis added) In 1895, the Legislature extended the 

potential universe of actors €alling within the scope of 

the Act by including anyone who "aids or incites such 

distinction, discrimination or restriction." St. 1895, c. 

461, §l. It further expanded the reach of the Act in 1933 

when it included among its prohibitions the "publish[ingl" 

or "issu[ance]" of discriminatory advertisements or 

circulars. St. 1933, c. 117. In 1950, the Act was amended 

to protect "the full and equal accommodations, advantages, 

facilities and privileges" of all place of public 

accommodation, again significantly extending the nature of 

the conduct the Act proscribes. St. 1950, c. 479. 

In addition, in the last 150 years, the scope of the 

term "place[sl" of public accommodation has been repeatedly 

enlarged. The Act initially applied to 'any licensed inn, 

[I any public place of amusement, public conveyance or 

public meeting in this Commonwealth," St. 1865, c. 277, and 

was expanded in 1893 to include several additional 

enumerated places %*or other public pl 

gain or reward." St. 1893, c. 436. 

of the Act was "materially broadened" 

defined a "place of public accommodat 

ces kept €or hire, 

In 1953, the "scope" 

when the Legislature 

on. . ." to 'include 

any place, whether licensed or unlicensed, which is open to 

and accepts or solicits the patronage of the general 

19

public." St. 1953, c. 437. l4 This amendment added a 

prefatory catch-all, clarifying that the definition of 

place and the subsequent enumerated Categories were not 

intended to "Limit [] the generality of this definition. 

St. 1953, c. 437. (emphasis added). By adding this 

language, the Legislature intended that the definition of 

place is "general" and that the categories of enumerated 

places serve as a subset of the potential universe of 

'place[sl" that fall within the statutory definition. The 

non-exhaustive list of places currently includes public 

places (public highways, seashore facilities and 

l4 Local Fin. Co. of Rockland, 355 Mass. at 13 

(Legislature's intention to broaden scope of the Act 

"especially" demonstrated by the inclusion of the words 

'any place . . . which is open to and accepts or solicits 

patronage of the general public"). See also Lacava v. 

Lucander, 58 Mass. App. Ct. 527, 534 (200337 

"A place of public accommodation, resort or amusement 

within the meaning hereof shall be defined as and shall be 

deemed to include any place, whether licensed or 

unlicensed, which is open to and accepts or solicits the 

patronage of the general public and without - limiting the -- 

qenerality of this definition, whether or not it be . . . 

[listing several enumerated categories of places] ." St. 

1953, c. 437 (emphasis added). 

l6 The term "general" means "not specific but that covers a 

wide range of situations." MacMillan English Dictionary 

(2011). By inserting this language, the Legislature 

evidenced its explicit expectation that the scope of what 

constitutes a "place" would continue to expand as the 

"civil right" to equal access and treatment afforded under 

the Act is enforced in different court actions and 

complaints in the court and the MCAD, respectively. 

20

oardwalks) and places traditionally thought of as private 

places (membership organizations, inns and some resorts). 

G.L. c. 272, § 98. 

The Massachusetts Legislature continued to broaden the 

scope of the Act, while at the same time amending the 

statute when it specifically wanted to exempt certain 

"places" that would otherwise be covered under the law. For 

example, after briefly excluding a "place" which is 

"operated for charitable or educational purposes", the 

Legislature eliminated this exemption in 1971. St. 1953, 

c. 437; St. 1971, c. 418. By so doing, the Legislature 

manifested i ts intent that the anti-discrimination statute 

should apply to organizations (like the NBME) operated €or 

an educational purpose. See Concord Rod & Gun Club, 402 

Mass. at 720. In addition, in 1978, the Legislature 

excluded from the definition of "place", entities created 

by federal law for the "express purpose of promoting the 

health, social, educational, vocational, and character 

development of a single sex.'' St. 1978, c. 331. This 

carve-out, which is still contained in the Act, is notable 

because it reflects the Legislature's acknowledgement that 

other organizations which are ~ 

not created by federal law 

for the development of a single sex but that expressly 

intend to promote educational development (such as the 

21

NBME) I 

are covered by the Act. Concord Rod & Gun Club, 402 

Mass. at 720-721. 

In addition to setting forth prohibited conduct, in 

1950, the Legislature amended the Act to establish a "civil 

right" for "all persons" to the "full and equal 

accommodations, advantages, facilities and privileges" of 

any place of public accommodation."17 St. 1950, c. 479. 

Moreover, the Legislature directed that this civil right is 

"subject only to the conditions and limitations established 

by law and applicable alike to all persons." __. Id. 

The legislative history of the Public Accommodation Act 

demonstrates that it has repeatedly been expanded and that 

when the Legialature wanted to exempt a particular activity 

or entity from the Act, it did so. The statutory language 

is noteworthy €or its elasticity and provides this Court 

with ample room to conclude that the NBME is a "place" of 

public accommodation within the scope of the Act. 

l7 This broad declaration waa modeled on language in the 

Civil Righta Act of 1875, which the United States Supreme 

Court since declared void, holding this type of legislation 

waa properly delegated to state, rather than federal, 

legislatures. Civil Rights - Act of 1875, ch. 114, 18 Stat. 

~ 

335, invalidated by The Civil Riqhts Cases, 109 U.S. 3 

(1883). 

22

B.TBE NATIONAL BOARD OF MEDICAL EXAMINERS IS SUBJECT TO 

THE MASSACHUSETTS PUBLIC ACCOUODATIONS ACT. 

The NBME makes the dubious argument that it "maintains 

no physical presence in Massachusetts" and therefore, is 

not a 'place" subject to G.L. c. 272, § 98. The NBME's 

active provision of testing services in Massachusetts is 

more than sufficient to bring the discriminatory 

administration of the Examination under the scope of the 

Act. Moreover, its integral role in licensing 

Massachusetts physicians imbues it with the responsibility 

to provide equal access to all test-takers under the Act. 

Finally, the NBME's complete operational control over the 

conditions and the provision of accommodations, under which 

aspiring physicians take the Examination, creates 

responsibility as an aider or inciter under the Act for any 

discriminatory practices. 

1. THE NBME IS A PROVIDER OF TESTINQ SERVICES IN 

MASSACHUSETTS AND TREREFORE, A PLACE OF PUBLIC 

ACCOmODATION UNDER THE ACT. 

The NBME's reliance on United States Jaycees v. Mass. 

Comrn'n Against Discrimination, 391 Mass. 594, 601-602 

(1984) for the proposition that 'place" should be defined 

restrictively as a physical location has been overturned by 

subsequent case Law. In 1994, the Massachusetts Supreme 

Judicial Court rejected this limited definition of place 

set forth in Jaycees and held that in light of the remedial 

23

nature of G.L. c. 272. 5 98 and the Legislature's intention 

that the Act be interpreted broadly with an eye toward 

inclusiveness, it was enough for a potential violator of 

G.L. c. 272, § 98 to be "associated" with a physical place 

or location in Massachusetts. Irish-American Gay, Lesbian 

and Bisexual Group of Boston v. City of Boston, 418 Mass. 

238, 248 n. 14 (1994), rev'd on other grounds sub nom. 

Hurley v. Irish American Gay, Lesbian, and Bisexual Group 

of Boston, 515 U.S. 557 (1995). 

Consistent with the "generality" of the definition of a 

"place" of public accommodation, the Commission has held 

that an organization which provides services in 

Massachusetts, whether it occurs in a physical structure or 

not, is a "place" under the Act. Samartin v. Metro. Life 

Ins. Co., 2005 WL 2993469 at "8 (MCAD Aug. 18, 2005) 

(limiting the scope of the Act "to physical accessibility 

only is contrary tw the broad scope and purpose of G.L. c. 

272" and would be 'incomprehensible" where "business is 

increasingly conducted through the Internet or over the 

telephone"). The Act has been applied in a wide range of 

contexts where services are provided." G.L. c. 272, § 92A 

18 

Local Fin. Co. of Rockland, supra; King v. Hanover Ins. 

- Co, 3 Mass. Discrimination Law Rep. 1429 (1981) (insurance 

services); Hassan v. City of Boston, 20 Mass. 

Discrimination Law Rep. 83 (1998) (weight room services); 

24 

.. .. . . . . . . .. ..

(defining place of public accommodation to include 

“establishment [SI . . . dispensing personal services”) . In 

Local Fin. Co. of Rockland, this Court applied the Act to 

financial services where a company’s policy was to refuse 

to provide loans to African Americans. The issue was not 

physical access to the business premises; indeed, the 

individual to whom the policy was applied never went to the 

business site. ~ 

Id. at 15-16. Rather, the Commission- 

initiated complaint and subsequent judgment against the 

finance company were based on its discriminatory financial 

services policy. See also Carparts Distrib. Ctr., Inc. v. 

Automotive Wholesaler‘s Assoc’n of New England, 37 F.3d 12, 

19 (1st Cir. 1994) (under Title 111 of the ADA, 42 U.S.C. 5 

12181, “public accommodation” is not limited to actual 

physical structures); Nat. Fed‘n of the Blind v. Target 

Corp., 452 F. Supp. 2d 946, 953 (N.D. C al. 2006) + The NBME 

applied its ADA-only policy to deny Dr. Currier access to 

the Examination, in violation of the Act. 

In this case, a company called Prometrics provided the 

physical place for D r. Currier and others to take the 

Examination. However, the NBME maintained complete control 

over the conditions under which the tests were 

Nathanson v. Mass. Comm’n A m s t Discrimination, 16 Mass 

_l__” 

L. Rep. 761 (2003) (J. Fahey) (Legal services). 

25

administered, including whether any individual test-taker 

would be allowed "examination format changes." ADD-43. 

Whether or not the NBME maintains a physical presence in 

the state is irrelevant when the effect of its decisions 

dictate the way the test is administered and whether state 

law is complied with. It would be against the purpose and 

policy of the Act to interpret Section 98 to exempt an 

organization like the NBME because it did not maintain a 

physical presence in Massachusetts but nonetheless 

exercised control over the physical premises. - See Jaycees, 

391 Mass. at 611 & n.1 (Abrams, J., concurring in part, 

dissenting in part) ("[olur public accommodation statute 

would be totally circumvented by a conclusion that an 

organization like the United States Jaycees is not a place 

of public accommodation within the Commonwealth, and 

therefore not subject to our law, yet may, without penalty, 

cause its agents, the State and local Jaycees, places of 

public accommodation within the Commonwealth, to 

discriminate against women in violation of the statute"). 

Here, the NBME, not Prometric, controlled the manner in 

which the examination was administered at the testing 

facility in Massachusetts, including who was entitled to 

"examination format changes" at the physical site under 

state and/or federal law. In order to prevent the Act from 

26

eing "totally circumvented", the NBME should be deemed a 

"'place" of public accommodation within the meaning of G.L. 

c. 151B, and subject to the statute's prohibition against 

making any distinction, discrimination or restriction on 

account of sex in the treatment of lactating test-takers at 

testing centers located in Massachusetts. 19 

2. THE NBME IS A PLACE OF PUBLIC ACCOMMODATION DUE 

TO ITS UNIQUE ROLE, SERVING THE NEEDS OF 

MASSACHUSETTS' MEDICAL LICENSING BOARD AND 

PROTECTING THE HEALTH OF THE GENERAL PUBLIC. 

The NBME plays a role so closely integrated with 

state-regulated licensing, that it must be considered a 

place of public accommodation subject to the Act. The 

NBME, along with the FSMB, are the only providers of the 

Examination. ~ 

See 243 Code Mass. Regs. § 2.02(2)(a); Vol. 

l9 The Trial Court concluded that the NBME is 'open to and 

accepting the patronage of the public who are taking 

offered examinations. . . " Vol. I, F!A 34. The NBME never 

raised an issue as to whether the NBME is "open to and 

soliciting or accepting the patronage of the general 

public." As this issue has been waived on appeal, it 

should not be addressed by this Court. Commonwealth v. 

%, 444 Mass. 640, 649 (2005); Wynn 6. Wynn, P.C. v. Mass. 

Comm'n Against Discrimination, 431 Mass. 655, 674-675 

(2000) (objections, issues, or claims that have not been 

raised in the trial court are deemed to have been waived on 

appeal). However, given the estimated 2,000 individuals 

who annually sit for the NBME's examination, the NBME 

should be considered open to and accepting the patronage of 

the general public. The Act contemplates situations where 

not every individual in Massachusetts will utilize 

services, e.g. bars, which are only open to individuals who 

are 21 years old and limited membership associations. G.L. 

c. 272, § 92A. 

27

I, RA 417; Vol. 11, liA 626, 668. Any individual seeking to 

obtain medical licensure as an allopathic doctor from the 

Massachusetts Board must take the Examination. The Board 

relies on the NBME's expertise in testing doctors and 

licenses physicians based on the test results. 

The NBME's relationship with the Massachusetts 

licensing function makes it distinctly "public" and imbues 

it with a responsibility to provide equal access to all 

persons taking the examination. Seidman v. Commodore's 

Club of America, 16 Mass. Discrimination Law Rep. 1549, 

1560-63 (1994) (where a club serves the underlying purposes 

of a state agency, the Metropolitan District Commission, to 

promote public recreation and amusement, it serves a public 

function and falls within the scope of G.L. c. 272, 5 98). 

The NBME's role as the gatekeeper for Massachusetts medical 

licensure makes it uniquely "public." Bowers v. ~ 

Nat. 

Collegiate Athletic Ass'n, 151 F. Supp. 2d 526, 540 (D. 

N.J. 2001) (the NCAA is a place of public accommodation due 

to its symbiotic relationship with the colleges that 

constitute its member institutions, ite regulation of who 

gets access to and what occurs on its member institution's 

playing fields and the member colleges' dependence on the 

NCIlA to provide uniform rules determining who gets access 

-. to and what occurs .I_ on their playing . .,,,.I. fields) (emphasis 

28

added); Frank v. Ivy Club, 120 N.J. 73, 104 (1990), cert. 

denied sub nom., Tiger Inn v. Frank, 498 U.S. 1073 (1991). 

As the Single Justice reasoned: "[iln essence, the 

[Massachusetts] Board of Registration of Medicinel has 

asked the NBME to stand in its place and provide several 

stages of evaluations of candidates seeking a medical 

license in the commonwealth." Vol. I, E 9 344. The NBME's 

public role in providing the testing on which the 

Massachusetts Board relies confers upon it the duty to 

comply with Massachusetts' anti-discrimination laws. 

The NBME is an entity that both has a significant 

effect on the public welfare of Massachusetts citizens and 

causes serious economic harm to those test-takers denied 

equal access to an examination that is essential for the 

continuation of their career. Franklin v. Order of United 

Commercial Travelers of America, 590 F. Supp. 255, 260 (D. 

Mass. 1984) (Order which ordinarily would be exempt from 

anti-discrimination laws as a "fraternal benefit society" 

lost that exemption because exclusion from the Order would 

affect the public welfare and cause economic harm to the 

individual excluded). The NBME is 'public" in that it i s 

entrusted with ensuring that Massachusetts' Board capably 

selects doctors competent enough to be licensed in 

Massachusetts, and in this capacity, protects the public 

29

health of residents, and owes a duty to properly administer 

the examination to aspiring doctors in compliance with 

Massachusetts law. 

3, THE NBME AIDED OR INCITED DISCRIMINATORY 

PRACTICES ON ACCOUNT OF GENDER, RENDERING IT 

LIABLE UNDER THE PUBLIC ACCObDfODATIONS ACT. 

For more than 100 years. the Act has reached beyond 

protecting Massachusetts citizens from the discriminatory 

acts of proprietors of places of public accommodation to 

also include those who aid or incite violations of the law. 

G.L. c. 272, §§ 92A, 98. St. 1895, c. 461 (amending 5 98 to 

proscribe “whoever aids or incites such distinction, 

discrimination or restriction“), St. 1933, c. 117 (amending 

5 92A to proscribe “whoever shall aid in or incite, cause 

or bring about, in whole or in part” the discriminatory 

circulation of advertisements). It is undisputed that a 

person seeking to become a physician in Massachusetts must 

apply to and pay a fee to the NBME to take the Examination, 

and direct any requests for examination format changes to 

the NBME. The authority that the NBME exercises over the 

administration of the Examination renders it an aider or 

inciter of any discriminatory practices that occur during 

the administration of the Examination. 

30

C.THE NBME W E A DISTINCTION, DISCRIMINATION OR 

RESTRICTION BASED ON GENDER AND DENIED DR. CURRIER 

FULL AND EQUAL ACCOMMODATIONS. ADVhNTAOES, FACILITIES 

AND PRIVILEUES IN VIOLATION OF THE ACT. 

1. DISTINCTIONS, DISCRICMINATION AND RESTRICTIONS BASED 

ON BREAST-FEEDINU ARE GENDER-BASED. 

Like pregnancy, lactation is "a condition unique to 

women" and from a scientific perspective, the ability to 

breastfeed is a primary characteristic of the female sex. 

Mass. Elec. Co. v. Mass. Comm'n Against Discrimination, 375 

Mass. 160, 167 (1978) (differential treatment based on 

pregnancy in providing comprehensive disability insurance 

burdens women workers, perpetuates stereotypes and 

20 

constitutes gender discrimination). Lactation is also a 

gender-based characteristic and should be treated like 

pregnancy, and not accorded different treatment because it 

is "voluntary." - Id. at 169, n.4 (discussing pregnancy: 

perpetuation of the human race cannot be termed voluntary, 

but instead, rests upon instincts which are fundamentally 

imperative). Unlike a healthy pregnant woman, women who 

2o Brady v. Art-Cement Prods. Co., 11 Mass. Discrimination 

Law Rep. 1053, 1062-1064 (1989) (employer's termination of 

employee based on assumption that employee would be 

unstable after her breast removal surgery constitutes 

gender discrimination as cancer-related breast removal 

carries with it sexual attitudes toward women's breasts and 

societal views specific to women, and therefore is a sex 

based characteristic unique to females). 

31

are nursing an infant face significant challenges that non- 

lactating individuals do not: lactating women are 

necessarily limited in that they must express milk 

periodically or risk infection and pain. VoL. 11, RA 551- 

562; Vol. 111, RA 943-946. ~ See pages 8-9, fn. 6, supra, 

describing medical complications. 

Prompted by the medical community's strong endorsement 

of breastfeeding, there has been a flood of state and 

federal legislation acknowledging both the importance of 

breastfeeding for infant and maternal health and the need 

for break time in order to express milk. Since 1993, 

Massachusetts," forty states and the District of Columbia 

and the federal government have enacted laws that allow 

women to breastfeed in any public or private location. 

Sixteen atates and the District of Columbia now require 

employers to provide reasonable break time and a secluded 

area near the employee's work area that is not a restroom 

23 

for employees to express breast milk. Oregon not only 

'' Mass. Gen. Laws c. 111, § 221 (a mother may breastfeed in 

any public place and no person or entity, including a 

governmental entity shall "restrict" or 'penalize" a 

breastfeeding mother) 

22 The Addendum attached to this Brief contains a list (MCAE 

Addendum 8) and copy of state and federal statutes 

protecting breastfeeding. MCAD Addendum 9-84. 

23 The Addendum attached to this Brief contains a list (MCAD 

Addendum EA) and copy of state laws that require employers 

32 

22

equires these measures, but requires employers to provide 

employees with at least thirty minutesz4 to breastfeed for 

each four-hour work period. Or. Rev. Stat. § 653.077 (West 

2009). The rationale behind the federal and state 

legislation protecting lactating women is that without 

allowing break time for breast pumping, breast feeding 

women are denied access to a wide variety of opportunities, 

such as working and advancing their careers. 

Massachusetts courts have consistently held liable 

employers who discriminate on the basis of pregnancy, as a 

sex-linked characteristic to which the anti-discrimination 

Laws apply. Lynn Teachers Union v. Mass. Comm'n Against 

Discrimination, 406 Mass. 515 (1990) (seniority system 

discriminated against women by forcing women to take leaves 

during their pregnancies which affected their seniority). 

See also Sch. Comm. of Brockton v. Mass. Comm'n Aqainst 

Discrimination, 377 Mass. 392 (1979) (excluding pregnancy 

from sick leave coverage is discrimination based on sex); 

Sch. Comm. of Braintree v. Mass. Comm'n Aqainst 

Discrimination, 377 Mass. 424 (1979) (policy of denying 

accumulated sick leave for pregnancy-related disabilities 

to provide reasonable break time and a secluded area to 

express milk. 

24 Notably, this is the same amount of time recommended by 

the unrebutted expert affiants in this case. Vol. IIT, R?+ 

943-946, 985-989, 1086-1090. 

33

is sex discrimination). Because lactation is limited to 

women, it is a sex-linked characteristic entitled to the 

protection of Massachusetts' anti-discrimination laws, 

including the Act, which protects nursing women from any 

distinction, discrimination or restriction on account of 

sex and establishes for nursing women the civil right of 

"full and equal accommodations, advantages, facilities and 

privileges" in places of public accommodation. 

2. THE NBME'S REFUSAL TO PROVIDE ADDITIONAL BREAK TIME 

TO CURRIER DENIED HER FULL AND EQUAL ACCESS TO THE 

EUINATION. 

The NBME violated the Act when it refused to make a 

simple adjustment to its examination by allowing Dr. 

Currier additional break time. Since 1950, the Act has 

protected "the full and equal accommodations, advantages, 

facilities and privileqes of any place of public 

accommodation . . .I' St. 1950, c. 479 (emphasis added). 

This language reflects the objectives of both G.L. c. 272, 

§ 99 and federal public accommodation law, which is to 

provide equal access to places of public accommodation. 25 

'' Heart of Atlanta Motel v. United States, 379 U.S. 241, 

250 (1964) (Title 11's purpose i s to vindicate "the 

deprivation of personal dignity that surely accompanies 

denials of equal access to public establishments"); 

Samartin v. Metro. Life Ins. Co., 2005 WL 2993469 at *7 

(MCAD Aug. 18, 2005) (the rights guaranteed by M.G.L. c. 

272, 5 99 extend to equal access to the advantages and 

privileges of services and service providers). 

34

Tn order for 'full and equal accommodations, advantages, 

facilities and privileges" to have teeth, the statute must 

be read to afford sufficient additional time for lactating 

women to pump during the Examination, over and above the 

forty-five minutes of break enjoyed by all other test- 

takers. Forcing lactating women to use the standard forty- 

five minute break time for nursing renders the testing 

conditions fundamentally unequal and disadvantageous for 

them when compared to non-lactating test-takers. ~ See supra, 

page 8 on medical ramifications. 

The Trial Court concluded that "the NBME did not 

prohibit Dr. Currier from expressing milk during the exam", 

a finding that fails to account for the physical need of 

lactating women to regularly pump or breastfeed and the 

time-consuming mechanics of the pumping process. Vol I, RA 

29. The expert affidavits support the position that €or 

breastfeeding women, particularly those in the early stages 

of breastfeeding such as Dr. Currier, the inability to 

adequately express milk over a nine hour period either 

renders the test inaccessible and prevents them from taking 

the examination or results in test-taking conditions that 

are materially disadvantageous. Nursing mothers require 

between twenty-five and thirty minutes per pumping session 

every three hours. Vol. 111, RA 984-1090; Vol. 111, RA 

35

942-975. It is virtually impossible to pump twice in 

forty-five minutes,26 particularly under exam conditions in 

which taking even an extra minute of break time could lead 

27 

to disqualification. A lactating woman could not have 

expressed milk in the standard forty-five minute break. As 

a result, the NBME's policy of allowing format changes for 

ADA disabilities only restricts a breastfeeding test- 

takers' access to the Examination, which is a necessary 

component of her career path, or denies her the right to 

take the Examination on an equal footing with other test- 

takers.28 The NBME's proposal that Dr. Currier skip the 

26 The NBME's representation that expressing could be 

reduced to as little as eight to fifteen and a half minutes 

is misleading and uninformed, and contested by Dr. Currier. 

- See Currier's Reply Brief, pps. 2-5, At the summary 

judgment stage, the Court must draw all inferences from the 

underlying facts in the light most favorable to Dr. Currier 

and rely on the reasonable twenty-five to thirty minute 

estimate, Att'y Gen'l v. - Bailey, 386 Mass. 361, 371, cert. 

den. sub. nom. Bailey v. Eellotti, 459 U.S. 970 (1982). 

The NBME's statement that it has always been undisputed 

that Dr. Currier could expreas breast milk "at any time 

during the examination, during breaks or otherwise" is not 

supported by the record, NBME Brief, p. 21. - See ADD-79 

(NBME sets out how Dr. Currier can use her break time for 

pumping). See also Vol. 111, RA 1170 (confirming that the 

room is "available to examinees who wish to use a breast 

pump during their allotted break time."). 

The NBME's policy to grant extra time, breaks or other 

examination format changes only for ADA covered 

disabilities raise8 serious issues about whether testtakers 

have been discriminated against under state law. 

Vol. I, RA 400. Massachusetts has provided persons with 

disabilities greater protection under G.L. c. 151B, 

including for example, by requiring that the issue of 

36

fifteen minute tutorial and devote all of her forty-five 

minutes of break time to expressing milk is an unacceptable 

solution that would require that Dr. Currier take the 

Examination under significantly more challenging conditions 

than other test-takers, violating her civil right to equal. 

access and treatment. 

Additionally, the NBME also proposed that Dr. Currier, 

who received double testing time because of an ADA 

disability, reconsider and resubmit that request in 

exchange for “prompt [I review and serious [I 

consider[ationl” of her request for additional time for 

pumping. This proposal represents an unusual 

interpretation by the NBME of its obligations under the 1 

and at the same time, allows it to avoid responding to the 

rights of nursing mothers under state law and instead, 

whether a person is ‘disabled” be determined without regard 

to mitigating measures. Dahill v. Police Dep‘t of Boston, 

434 Mass. 233 (2001). This Court‘s interpretation 

contrasts with the United States Supreme Court’s narrow 

interpretation of the same issue under the ADA. Sutton v. 

United Air Lines, 527 U.S. 471 (1999) (requiring an 

individual’s self-help efforts to be considered when making 

a determination of “disability. “1 The Commission has 

concerns that the NBME failed to consider Massachusetts Law 

when making past decisions on whether a test-taker was 

“disabled” for purposes of a request for a reasonable 

accommodation, an issue that the Commission has encountered 

in complaints filed against other test providers. 

Fundamentally, this is the reason that a gate-keeper like 

the NBME must be regulated under the Act. 

37

maintain examination conditions that are significantly 

disadvantageous to such women. Vol. 111, RA 1164. The 

suggestion that Dr. Currier relinquish her lawful right to 

a disability-related accommodation in exchange for the 

opportunity to express milk (and therefore, continue 

nursing) reflects an improper view that her physical 

conditions (ADHD, dyslexia, lactation) can be discarded at 

will. 

Lactation is vigorously recommended by the medical 

community and requires regular expression of milk to avoid 

infection and to continue producing breast milk. Currier‘s 

Brief, pps. 10-11. The NBME‘s proposal that the necessary 

time to pump can simply be traded with ADA accommodations, 

or just abandoned, reflects reflexive, uninformed and 

discriminatory assumptions about breastfeeding. 

Similarly, the NBME’s unsolicited advice to Dr. 

Currier th’at she sit for the examination at a later time 

that was better for her ‘personal” schedule reflects a 

paternalistic view of a woman‘s choice to nurse and pursue 

her career at the same time, raising an inference of 

discriminatory gender bias. Vol. 111, 1170-1171. See 

Thomas v. Eastman Kodak Co., 183 F.3d 38, 60 (1st Cir. 

1999) (citations omitted) (“ ‘Unwitting or ingrained bias is 

no less injurious. . . than blatant. . . discrimination.’”) 

This is especially so when contrasted to the NBME‘s 

38 

-

allowance of additional time to a (non-lactating) test- 

taker with impairments that did not rise to the level of a 

disability because of the NBME's explicit concern with 

delaying the individual's professional trajectory, 

discussed supra at pages 12-14. 

Finally, the record evidence contradicts the NBME's 

claim that: it adheres strictly to its policy of allowing 

extra break time only when the test-taker is disabled under 

the ADA, and that it "consistently refuses to grant 

accommodations for medical conditions" that do not rise to 

the level of a disability under the ADA. NBME Brief, pps. 

6, 29. The record albeit, not fully developed due to the 

Trial Court's abrupt stay of discoveryz9, reveals several 

instances of individuals who axe not disabled under the ADA 

but who were given assistance in order to allow them access 

- 

to the exam. See supra at pages 12-14, exceptions to 

NBME's policy. The NBME's flexible and open approach with 

test-takers to whom it acknowledges that it owes no duty 

under the ADA, stands in sharp contrast to the NBME's 

refusal to allow Dr. Currier even a minimal amount of 

additional break time in order to express milk. __ See Gu v. 

Boston Police Department, 312 F.3d 6 (2002) (a departure 

from prior practice can be probative of discriminatory 

29 

_ See supra at page 15, discussing stay of discovery. 

39

intent). Trustees of Health & Hosps. of the City of Boston, 

- Inc. v. Mass. Comrn'n Against Discrimination, 449 Mass. 675, 

686 (2007) (harsh implementation of a layoff procedure 

against five African American employees only, while not 

implementing the layoff procedure for non-African American 

employees, is discriminatory). 

The NBME provided additional time to non-disabled 

individuals who did not even request it and expressed 

concern in at least once instance that postponing the test 

would adversely affect a test-taker's prafessional 

development. In contrast, Dr. Currier was repeatedly 

denied any additional break time, told she should re- 

schedule to a time "most convenient" to her "professionaL 

and personal commitments and schedules" and inappropriately 

offered the opportunity to withdraw her accommodations 

under the ADA in exchange for serious consideration of her 

lactation-based request for break time. Vol. 111, RA 1171. 

The NBME's automatic refusal to consider Dr. Currier's 

lactation based limitation and give her the same "courtesy" 

granted these non-disabled test-takers i s a "distinction, 

discrimination, or restriction" on Account of a unique 

gender-based characteristic in violation of the Act. See 

Vol. I, RA 351 (Order of Single Justice Katzrnann) ("Board's 

willingness to accord other test-takers additional break 

40

time, but not [Dr. Currier], is in effect consistent with 

an intent to discriminate against this woman's decision to 

breastfeed, especially given that the NBME has conceded it 

has the technical ability to modify the format.") 

The Trial Court's reliance on the "comfort measures" 

the NBME gave to Dr. Currier,30 as evidence of the NBME's 

lack of discriminatory intent to treat Dr. Currier 

differently than other test-takers or to deny her equal 

testing conditions because of her sex, is error. Aside 

from the fact that intentional discrimination need not be 

proved under the Act, it is not enough for the NMBE to have 

provided some changes to the testing format but not the one 

change that would have met Dr. Currier's uniquely gender- 

based physical needs and ensured her equal test-taking 

conditions, namely, sufficient additional time to express 

milk. Just as allowing a diabetic the opportunity to check 

blood sugar levels and take insulin means nothing without 

the break time in which to accomplish this, a personal item 

exception is meaningless without the necessary additional 

time in which to express milk. The comfort measures "are 

entirely insufficient to permit [Dr. Currier] a full 

30 For example, the NBME allowed Dr. Currier food and drink 

in the testing room. There are other bodily needs such as 

going to the bathroom, however, that the NBME's refusal to 

allow additional time made difficult, if not impossible. 

41

opportunity to express milk during the . . . exam . . . 

That the NBME is willing to accord the petitioner certain 

accommodations - but not extra daily break time - is 

unreasonable." Vol.1, RA 351 (Order of the Single Justice). 

Just because a place of public accommodation provides 

some special provisions that bear on equal access and 

treatment does not mean that the Act has not been violated 

if there continues to be differences in the way women are 

treated. Joyce v. Town Of Dennis, 705 F. Supp. 2d 74, 80- 

82 (D. Mass. 2010), appeal docketed, No. 11-1928 (1st Cir. 

Aug. 16, 2011) (municipal golf club with male and female 

membership and "women' s only" and "men's only tournaments" 

denied "the full and equal accommodation" of the municipal 

golf club and made a "clear distinction based on gender" 

such that women were not on equal footing with male 

golfers). Providing comfort measures has no value to a 

lactating test-taker without the necessary additional time 

to express milk and the NBME's steadfast refusal to 

consider this for Dr. Currier under its policy i s a 'clear 

distinction based on gender" denying her the full and equal 

advantages of the Examination. 

42

3.THE NBME'S REFUSAL TO PROVIDE ADDITIONAL BREAK TIE3 

TO CURRIER DENIED HER ACCESS TO THE EXAMINATION ON 

EQUAL TERMS WITH OTHER TEST-TAKERS. 

Even if Dr. Currier could have somehow disrobed, 

washed up, assembled the pump, pumped quickly and 

disassembled the pump in twenty-two and a half minute 

sessions rather than the recommended time, she could hardly 

have been considered to be taking the exam on equal footing 

with her non-lactating counterparts. Dr. Currier was 

entitled to forty-five minutes of break time to do as she 

pleased, whether to eat, get fresh air, use the rest room 

or attend any other personal needs, just Like every other 

non-lactating teat-taker. The Act requires that places of 

public accommodation in Massachusetts allow equal access, 

and that the "accommodations, advantages, facilities and 

privileges" be "full and equal." "Any" distinction, 

discrimination or restriction may include hostile treatment 

in a place of public accornrnodati~n~~, substandard service 

31 Varona v. City of Boston Parks Dep't, 21 Mass. 

Discrimination Law Rep. 259, 261 (1999) (racial epithets 

toward an African American woman as she walked through park 

restricted full and equal access); Barbot v. Yellow Cab 

~ Co., 23 Mass. Discrimination Law Rep. 317, 317 (2001) (taxi 

cab driver who picks up passengers and repeatedly calls 

them "faggots'' creates a distinction, discrimination or 

restriction in violation of the Act); Pares v. Walee Fuel 

Injections, 17 Mass. Discrimination Law Rep. 1439, 1443 

(1995) (garage owner who insulted customers' national 

43

ased on the customer’s protected class3’, 

substandard fa~ilities~~, different terms and conditions in 

service34 and disparate treatment.35 

separate and 

The NBME acknowledged 

that additional break time can be essential to put disabled 

test-takers on “equal footing” with non-disabled test- 

origin, increased fee without explanation and detained 

customers against their will, violated the Act); Dottin v. 

Univ. of Mass. at Amherst, 22 Mass. Discrimination Law 

Rep. 404, 406 (2000) (racial slur used by university 

dining services employee was a violation of tha Act). See 

also Jones v. City of Boston, 738 F. Supp. 604, 605 (D. 

Mass. 1990) (bartender calling patron “nigger” denies 

“equal access” on the basis of race); King v. Greyhound 

Lines, Inc., 61 Or. App. 197, 201 (1982) (racial slurs 

denied “full and equal” accommodations under the Oregon 

Public Accommodations Law). 

32 Saint Louis v. La Reine Boutique, 28 Mass. Discrimination 

Law Rep. 45, 47 (2006) (providing inferior services to 

African American patrons denies full and equal 

services); Bachner v. Mass. Bay Transp. Auth., 22 Mass. 

Discrimination Law Rep. 183, 186 (2000) (upon exhibiting 

symptoms of hia disability, passenger sent to a non-air 

conditioned car, creating distinction in services). 

33 Hassan v. City of Boston, 20 Mass. Discrimination Law 

Rep. 83 (1998) (gender segregated weight rooms deny “equal 

access”) . 

34 

Carpenter v. Yellow Cab Co., 23 Mass. Discrimination Law 

Rep. 63, 64 (2001); Wilder v. Diamond Cab Co., 23 Mass. Law 

Rep. 65, 67 (2001) (prepayment requirement for black 

complainants unequal terms and conditions); Pendarvis v. 

Roseland Int’l, 22 Mass. Discrimination Law Rep. 276, 278 

(2000) (drastically increasing agreed upon price for 

ballroom rental for African American renter, while charging 

other renters less, violated the Act). 

3s 

Bruneau v. G&G Lambert‘s, Inc., 26 Mass. Discrimination 

- - 

Law Res. 43. 45 (2004) . (unreasonable . 

monitorina of customer 

because he had a guide dog diminished “his ability to enjoy 

the privileges of the facility . . .”); Cummings v. 

Safeguard Security, 24 Mass. Discrimination Law Rep. 174, 

175 (2002) (guard’s improper search of African American 

shopper at mall violated Act because white patrons were not 

treated similarly) . 

44

takers, but repudiates the idea that lactating test-takers, 

all of whom are female, also require additional break-time 

to express milk to be on equal footing with their fellow, 

non-lactating test-takers. The NBME’s refusal to consider 

giving Dr. Currier additional time for expressing milk, 

where lactation is a characteristic uniquely associated 

with gender, impermissibly and intentionally created 

testing conditions that were inherently substandard to the 

testing conditions of all other non-lactating test-takers, 

and violated the Act. 

4.THE NBME’S FAILURE TO ASSERT AND SUPPORT WITH 

EVIDENCE ANY REASON FOR DENYING DR. CURRIER 

ADDITIONAL BREAK TIME SHOULD LEAD TO A FINDING OF 

LIABILITY UNDER THE ACT. 

The Legislature intended that the right to full and 

equal accommodation be abridged only by “conditions and 

limitations“ established by the law and ”applicable to 

all.“ G.L. c. 272, S 98. The NBME has not identified, nor 

is there any such ‘law” that would justify its refusal to 

consider a format change(s) for a lactating woman. To the 

contrary, the Legislature has determined that breastfeeding 

is an important State public policy that should be 

supported and as a result, has prohibited public places 

from “restrict ring1 , harass ring1 or penalize[ingl” a 

breastfeeding mother. G.L. c. 111, 5 221. 

45

Assuming arguendo that the NBME could offer reasons in 

defense of its refusal to allow Dr. Currier additional time 

to express her milk,36 the only one offered aside from its 

policy of providing test format changes for ADA 

disabilities only, is the unsupported assertion that denial 

of this request is necessary to provide fair and equal 

examination conditions for all test-takers. There is no 

evidence anywhere in the record that giving breast-feeding 

women additional break time to pump fundamentally alters 

the nature of the examination or, that it somehow gives the 

lactating mother a leg up on the other test-takers (an 

assertion that is unsupportable given the physical reality 

of lactating).37 As the Single Justice found, the NBME "has 

made no showing that modifying the existing program to meet 

[Dr. Currier's] testing requirements is an unreasonable 

request financially or otherwise. Likewise, the NBME has 

not shown how allowing [Dr. Currier} to compete on a level 

playing field will in any way disrupt the integrity of the 

'' The Commission is not conceding that rights under the 

Public Accommodation Act can be "abridged" by any reason 

other them "conditions and limitations" established by law 

and "applicable to all.'' G.L. e. 272, § 98. 

37The NBME has not raised any concerns of cheating during 

the examination, but any such concern can be no greater 

than already exists under the current configuration of the 

exam. Examinees are permitted during their break time to 

leave the testing room and go anywhere they wish, including 

outside the test site, provided that they do not exceed the 

standard break time. Currier's Brief, pps. 25 - 26. 

46

testing process." Vol. I, M 349 (Order of Single Justice 

Katzmann). Absent: a law abridging the rights of the 

protected class of breast-feeding women, or other 

articulated reasons, supported by evidence, for restricting 

the ability of breast-feeding to take the examination on 

equal terms with other non-lactating test-takers, the Act 

is violated. Joyce v. Town of Dennis, supra at 80-82 

("[wlhen the defendants draw a clear distinction based on 

gender and their only explanation is to deny that any 

distinction existed, they will not prevail"). 

5.THE NBME'S POLICY OF W I N G EXAM FORMAT CHANUES ONLY 

FOR ADA-DISABILITIES DENIES AND RESTRICTS A 

LACTATING WOMAN'S ABILITY TO TAKE THE MEDICAL 

EXAMINATION. 

The Public Accommodations Act does not require proof 

of discriminatory intent in order for the owner of a place 

or public accommodation or an aider or inciter to be held 

liable €or prohibited conduct under the statute. G.L. c. 

272, § 98. - See generally Local Fin. Co. of Rockland, supra 

(intent to discriminate can, but need not, be proved). The 

Trial Court erred when it applied its Massachusetts Equal 

Rights Act ("MERA") analysis, which requires proof of 

intent to discriminate, as the basis for dismissing Dr. 

Currier's claim under the Act. Vol. I, RA 31-34. 

47

In this case, the application of the standard forty- 

five minute break time over the course of a nine hour 

examination has a disparate impact on lactating women. 

Because the primary characteristic of women nursing new 

infants i s the inability to be away from a pump or infant 

for more than three hours, the application of this forty- 

five minute break policy in a nine hour exam "visibly 

operate[sl to the particular disadvantage of" nursing women 

and falls "more harshly" on wamen than men. Sch. Comrn. of 

Braintree, supra at 428-432. A facially neutral policy may 

violate the Act where its burden falls only on women or a 

sub-class of women because of a characteristic of their 

gender. Vol. I, RA 331-356 (Order of the Single Justice 

(Katzmann, J.1; Vol. 111, RA 1108 (Memorandum of Decision 

and Order on Defendant's Motion for Partial Judgment on the 

Pleadings, Sanders, J.1. Here, the only group that is 

impacted by a policy that refuses to consider extra break 

time for anyone other than persons with disabilities under 

the ADA, are lactating women.38 The NBME's routine 

application of its forty-five minute break served to 

38 The Commission cannot identify any other condition which 

by definition, attaches to a protected class and presents 

this type of temporary physical limitation. As such, and 

because of the broad statutory language, the Court need not 

consider whether the Act imposes the obligation to provide 

lactating women with a "reasonable accommodation." 

48

'restrict" lactating women "on account of sex." G.L. c. 

272, § 98. See Olzman v. Lake Hills Swim Club, Inc., 495 

F.2d 1333, 1341 (2d Cir. 1974) (private swimming club, 

whose members were all Caucasian, requirement that "guests" 

be limited to members' friends or relatives 'had the effect 

of discriminating against blacks" in violation of the 

federal public accommodation statute, 42 U.S.C. 5 2000a); 

Robinson v. Power Pizza, 993 F. Supp. 1462 (M.D. Fla. 1998) 

(pizza delivery company's policy of drop-off service, 

rather than delivery, to predominantly African American 

community disparately impacts that community in violation 

of 42 U.S.C. 5 2000a-2). See also Commonwealth of Mass. 

Office of the Attorney General v. Fung Wah Bus Transp., 

- Inc., 29 Mass. Discrimination Law Rep. 95, appeal docketed 

and argued, No. 2010-P-1064 (Mass. App. Ct. ApC. 14, 2011) 

(Commission found a neutral "no animals"/"no pets" policy 

violates the Act when used in a discriminatory fashion to 

deny passage to customers with guide dogs). 

Whether the NBME intended to exclude Dr. Currier from 

taking the Examination or not, its refusal to deviate from 

its forty-five minute break time disadvantageously impacted 

Dr. Currier and all test-takers who require milk expression 

every three hours. The application of the standard break 

time forces such test-takers to choose between taking the 

49

Examination and foregoing breastfeeding, taking the 

examination under extraordinarily disadvantageous terms or 

not taking the examination and delaying it until they have 

stopped nursing. This is not the equal access and the 

"full and equal accommodations" that the Act demands. 

VI. CONCLUSION 

For all the reasons set forth herein. the Court should 

reverse the lower court's grant of summary judgment and 

allow the matter to go forward at the trial level. 

Respectfully Submitted, 

Massachusetts Commission Against 

Discrimination 

By its Attorneys, 

Catherine C. Ziehl, BBO No. 563840 

Catherine.zieh1~state.ma.u~ 

Simone R. Liebman, BBO No. 564614 

Simwne.liebman@state.ma.us 

Massachusetts Commission 

Against Discrimination 

One Ashburton Place, Rm. 601 

Boston, MA 02108 

(617) 994-6100 

50

462 Mass. 1 - MCAD Brief - Mass Cases

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