Currier v. Nat'l Bd. of Med. Examiners

• Decision Date: 13 April 2012
• Docket Number: SJC–10898.
• Citation: 965 N.E.2d 829
• Parties: Sophie C. CURRIER v. NATIONAL BOARD OF MEDICAL EXAMINERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

965 N.E.2d 829

Sophie C. CURRIER¹

v.NATIONAL BOARD OF MEDICAL EXAMINERS.

SJC–10898.

Supreme Judicial Court of Massachusetts, Norfolk.

Submitted Dec. 8, 2011.

Decided April 13, 2012.

Marisa L. Pizzi, Framingham, for the plaintiff.

Joseph F. Savage, Jr., Boston (Suzanne Williams, of Pennsylvania, with him) for the defendant.

The following submitted briefs for amici curiae:

Gerald Calnen for Academy of Breastfeeding Medicine.

Robert A. Burgoyne, of the District of Columbia, & John D. Lawrence for National Conference of Bar Examiners & others.

Simone R. Liebman & Catherine C. Ziehl, Boston, for Massachusetts Commission Against Discrimination.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & LENK, JJ.

IRELAND, C.J.

This case arose from a dispute between the plaintiff, Sophie C. Currier (Currier), a medical student and a nursing mother, and the defendant, the National Board of Medical Examiners (NBME), a private, nonprofit corporation² responsible for administering the United States medical licensing examination (exam), which is a test required for medical licensure in Massachusetts. Currier brought an action for declaratory relief seeking a determination that, by refusing to give her additional break time and a suitable environment during the exam in which to express breast milk for her nursing daughter, the NBME violated (1) her right to privacy guaranteed under arts. 1, 10, and 12 of the Massachusetts Declaration of Rights; (2) the Massachusetts Civil Rights Act (civil rights act), G.L. c. 12, §§ 11H, 11I ; (3) the Massachusetts Equal Rights Act (equal rights act), G.L. c. 93, § 102 ; and (4) the Massachusetts public accommodation discrimination statute (public accommodation statute), G.L. c. 272, §§ 92A, 98. Currier also sought injunctive relief requiring the NBME to give her an additional sixty minutes of break time per test day and a private room with a power outlet in order to express her breast milk in privacy. In a counterclaim, the NBME sought a declaration that it is not a State actor and that its gender-neutral accommodations policy does not disparately impact female exam candidates. The parties filed cross motions for summary judgment. A Superior Court judge denied Currier's motion and allowed NBME's motion. Judgments entered dismissing Currier's complaint as well as NBME's counterclaim. Both parties filed notices of appeal. We granted Currier's application for direct appellate review and invited interested parties to submit briefs on the issues raised.

We conclude that, in refusing to provide additional break time to Currier during the exam, the NBME did not violate the civil rights act because its conduct did not amount to coercion under that act. The judge, therefore, properly granted summary judgment to the NBME on this claim. We further conclude that Currier proffered sufficient evidence to raise a genuine issue of material fact as to whether the NBME violated her rights under the equal rights act. Thus, summary judgment on that count is inappropriate. Concerning Currier's claim under the public accommodation statute, we reject the legal arguments advanced by the NBME regarding the application of that statute to these circumstances, and conclude that Currier is entitled to summary judgment on that claim. Because Currier is entitled to statutory relief under the public accommodation statute (and possibly also under the equal rights act), we do not decide her constitutional claim. See Commonwealth v. Vega, 449 Mass. 227, 234, 866 N.E.2d 892 (2007) ("we generally decline to reach constitutional questions where, as here, there is a readily available statutory ground that renders such a decision unnecessary"); Commonwealth v. Paasche, 391 Mass. 18, 21, 459 N.E.2d 1223 (1984) (we do "not decide constitutional questions unless they must necessarily be reached"). Our decision in the context of the equal rights act and public accommodation statute counts, that lactation is a sex-linked classification, recognizes that there remain barriers that prevent new mothers from being able to breastfeed or express breast milk. We take this opportunity to extend protection to lactating mothers in the context of lengthy testing required for medical licensure.³

1. Background. The material, undisputed facts (unless otherwise noted) are as follows. The board of registration in medicine (board), the Commonwealth's licensing agency for physicians, has promulgated regulations setting forth "substantive standards governing the practice of medicine which will promote the public health, welfare, and safety and inform physicians of the [b]oard's expectations and requirements." 243 Code Mass. Regs. § 2.01(1) (2010).⁴ These regulations require any person seeking to obtain a full medical license to (a) have completed a minimum of two or more academic years at a legally chartered college or university; (b) have completed and attended four academic years of instruction in one or more legally chartered medical schools and have received the degree of doctor of medicine, or its equivalent; (c) submit to the board satisfactory proof of good moral character; (d) complete one year of certain postgraduate medical training; and (e) fulfil the examination requirements for licensure as provided in 243 Code Mass. Regs. § 2.02(2). 243 Code Mass. Regs. § 2.02(1) (1995). A person "may fulfill the examination requirements for licensure by submitting evidence of having achieved a score acceptable to the [b]oard" on the exam. 243 Code Mass. Regs. § 2.02(2) (1995).

The NBME is responsible for administering the exam, which is divided into three "steps" or examinations. The NBME's stated mission is "to protect the health of the public by providing a common, consistent, state-of-the-art system of assessment for health professionals." The exam is accepted as part of the process of medical licensure in all fifty States.

Step 2, clinical knowledge (step 2), is the second step of the exam. It is a computer-based test that assesses whether an examinee can apply medical knowledge, skills, and understanding of clinical science essential for the provision of patient care under supervision and includes emphasis on health promotion and disease prevention. Step 2 of the exam is offered five to six days per week, fifty weeks of the year, at approximately 300 domestic test centers operated by Prometric, a private third-party company. Examinees select a test center subject to the approval of Prometric.

Step 2 is comprised of approximately 370 multiple-choice questions contained within eight sixty-minute testing blocks. Under standard conditions, step 2 is administered on computers in one nine-hour testing session. Prior to answering the test questions, examinees have fifteen minutes to complete an introductory tutorial. Examinees taking step 2 are provided with forty-five minutes of break time over the course of the examination to attend to personal needs such as eating, drinking, and using the restroom. Examinees are required to sign in and out of the testing room, and may use their allotted break time as they choose throughout the exam, provided that they take breaks only between blocks. Under the standard format, examinees take the step 2 exam in shared examination rooms into which they are not permitted to bring personal items.

The NBME is bound by the Americans with Disabilities Act (ADA) to provide reasonable testing accommodations to applicants with disabilities as defined under the ADA. Under the ADA, an individual is considered to have a "disability" if he or she has a physical or mental impairment

that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment. 42 U.S.C. § 12102(2) (Supp. IV 2010). The NBME's policy is to grant accommodations only for persons with "ADA covered disabilities." Such accommodations include providing additional time to complete the exam, additional break time, large print or audio examinations, or assistance in recording answers. When an examinee has an impairment that the NBME deems to be temporary, it determines on a case-by-case basis whether the impairment nonetheless rises to the level of "ADA covered disability" warranting reasonable accommodation. Currier alleges (and has proffered evidence) that the NBME, contrary to its stated policy, has provided accommodations to examinees whose impairments did not constitute disabilities under the ADA, including temporary medical conditions.⁵

The NBME has a "personal item exception" to its policy concerning disabilities. Pursuant to this exception, individuals with a medical condition that is not a disability under the ADA may, on request and approval of the NBME, bring personal items, such as pillows or food, into the testing room. The NBME, however, does not alter the test format for an individual who has been granted a personal item exception.

The NBME sets the score required to pass the exam, grades the exam, and reports the results to the varying licensing authorities.⁶ The NBME maintains, contrary to the allegations of Currier, that it does not establish the educational eligibility requirements to sit for the exam.

In June, 2007, Currier, then enrolled at Harvard Medical School, notified the NBME that she planned to take the step 2 exam in the fall of 2007 at a Prometric testing center in Brookline.⁷ Because Currier previously had been diagnosed with dyslexia

and attention deficit hyperactivity disorder (ADHD), recognized disabilities under the ADA, the NBME granted Currier's request to be provided with an additional testing day to complete the exam as well as a separate testing room in which to take the exam.⁸ Currier also requested additional break time because she would be breastfeeding her then four to five month old daughter at the time of the test and maintained that she needed more break time, beyond the standard forty-five minutes of break time, to express breast milk properly. The NBME denied this...