Home Home Page

AIM Backs Efficiency measures for MCAD

September 8, 2009

STATEMENT OF ASSOCIATED INDUSTRIES OF MASSACHUSETTS BEFORE THE JOINT COMMITTEE ON STATE ADMINISTRATION AND REGULATORY OVERSIGHT IN SUPPORT OF S.1404, AN ACT RELATIVE TO THE MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION

Chairman Joyce, Chairman Walsh and members of the Joint Committee on State Administration and Regulatory Oversight, my name is Bradley A. MacDougall, Associate Vice President of Government Affairs for Associated Industries of Massachusetts (AIM).   AIM is the state’s largest nonprofit, nonpartisan association of Massachusetts’ employers.  With more than 6,500 members who employ nearly one out of every five workers in Massachusetts, AIM’s mission is to promote the well-being of its members and the prosperity of the Commonwealth of Massachusetts by improving the economic climate, proactively advocating fair and equitable public policy, and providing relevant, reliable information and excellent services.

AIM wishes to be recorded in support of S.1404, which is sponsored by Senator Scott P. Brown and co-sponsored by Senator Richard T. Moore.   We urge the committee to give the bill a favorable report.  S.1404 seeks to create a more effective, efficient and less costly process for all parties involved in pursuing or responding to complaints at the Massachusetts Commission Against Discrimination (MCAD), so that appropriate justice will not be delayed and the rights of all parties are respected.  The core of this legislation creates a new section of the general laws, section 5A of Chapter 151B, focused on the procedures for handling claims filed at the MCAD involving alleged discrimination in employment.
The legislation creates a filing fee for complainants, although the fee can be waived if warranted by the circumstances.   The purpose of the fee is to recognize that just like in the Commonwealths’ courts, all filings impose costs on the system.  This fee will help to ensure the complainant is committed to the process at the MCAD and that he or she believes she has a legitimate claim of discrimination.

The bill also clarifies the complaint intake process by requiring that the initial filing present a clear statement of the dispute, and creates deadlines for specific actions by the employee, employer and the Commission, including a 365-day deadline for a decision by the Commission as to whether there is probable cause in the allegations in the complaint.   Unlike the current system, S.1404 allows discovery at the MCAD only after a probable cause finding (except in extraordinary circumstances), provides that, based on traditional rules of evidence, discovery orders be issued or denied in 30 days after a request by a Commission attorney, and provides (subject to good cause) that each party must attend conferences scheduled by the Commission, upon penalty of default.  The legislation provides explicit procedures to allow the respondent to remove the case to state or federal court to pursue adjudication by a jury.

Finally, the bill provides that before the Commission adopts new guidelines, it must seek public comment during a 90-day period.

In considering this bill, it is important for the Joint Committee to understand the existing process for pursuing discrimination claims under Chapter 151B.   The MCAD was organized in 1946.  Over the years, its jurisdiction has broadened to include public accommodations and housing and its power to enforce discrimination findings (including in the workplace) was widened.  According to recent reports, nearly 85 percent of the complaints filed at the MCAD involved employment disputes.  In fulfilling its mandate, the MCAD has long emphasized its civil enforcement mission, choosing to accept all complaints into its process.

Under the current framework, all claims under Chapter 151B start with the filing of a complaint with the MCAD.   Once the complaint is filed, a person alleging discrimination can elect to pursue one of two paths.  First, a person filing a complaint can withdraw it from the MCAD 90 days after it is filed, and pursue his or her case in Superior Court.  The complaint can be moved to Superior Court before the end of the 90-day period if a request is made and the MCAD approves.  A complainant can exercise the right to bring a claim in Superior Court at any time within three years of the alleged unlawful discrimination.

The second path involves leaving a complaint at the MCAD for resolution.   If a party chooses this path, the complaint is first subjected to an initial screening process in which the Commission determines whether there is “probable cause” to support the complaint.  If the MCAD determines that there is probable cause, the parties are permitted to conduct discovery and then to present their positions at a public hearing at the MCAD that is similar to a trial in Superior Court.  In certain cases where both parties have lawyers, the parties go through a discovery process even before the MCAD makes the initial probable cause determination.

This approach of taking all claims and then attempting to weed them out for lack of merit after the fact may appear fair on its face.   This approach, however, has resulted in extraordinary delays in the processing of claims, because the agency is understaffed and under funded.  According to the 2007 MCAD Citator there were numerous cases decided in 2007 at the MCAD that were originally filed in the years 2000 and 2001.  As a practical matter, it is almost impossible for the MCAD to promptly handle the large volume of complaints it receives each year.  The same review of cases before the MCAD highlighted that the average length of a case is over 4 years.  Further, with four months remaining in 2009, the MCAD has yet to publish a 2008 annual report that describes the agencies caseload management.  Taxpayers are left supporting an inefficient process where questionable complaints are pursued while legitimate complaints are left to languish.  Parties seeking relief from discrimination suffer along with employers in a system that delays justice.  The legislation before the Joint Committee focuses on improving and streamlining the procedures for resolving complaints at the MCAD.

To emphasize this point, it is worth noting that while 4,000 to 5,000 complaints per year are filed at the MCAD, the Commission issued a probable cause finding in only 20 percent of those cases in 2007 and less than 15 percent in 2003.   It can take two years following the filing of a complaint for the MCAD to complete the initial screening process and issue a finding that a complaint is without merit.  As we know from our members’ experience, the MCAD does not have a process for quickly resolving frivolous complaints that may be filed by people who may have had something happen to them at work which makes them angry, but which did not involve discrimination.  We want the MCAD to fulfill its statutory responsibility and provide justice for those who may have legitimate claims.  To achieve this objective, we believe the MCAD should improve its procedures and focus its limited resources on the smaller number of complaints that merit the agency’s attention.

Our members have repeatedly identified inefficient and counterproductive administrative procedures by state agencies, including the MCAD, as having a negative effect on the economic climate in our state.

S.1404 is a proposal to address these problems and achieve a good procedural balance with efficient and responsive action while providing due process for all parties.   S.1404 is an initial proposal for such changes.  There are provisions in this legislation that, on balance, may have more beneficial effect than others.  It may be that some of these problems and changes can be addressed administratively while other reforms require legislative action.  Indeed, since the legislation was filed we have continued conversations with our members and experts, and as a result we have suggestions for further refinements to the legislation.
We asked Senator Brown to file this legislation as an opportunity to begin discussions with you, the Commission and others.   Overall, the amendments to existing law contained in this legislation are focused on MCAD’s procedure.  We would, therefore, ask this Committee to engage in further discussions with affected parties about these proposals before issuing a favorable report.