By: Attorney Timothy Stark – December, 2013
![AttorneyStark[1]](https://valleypatriot.com/wp-content/uploads/2013/12/AttorneyStark1.jpg)
The Massachusetts Commission Against Discrimination (commonly referred to as the “MCAD”) was established to enforce M.G.L. c. 151B, often referred to as “The Fair Employment Practices Law.” The MCAD is a part of the Executive Branch of the Massachusetts state government. If an employee believes they have suffered an adverse employment action as a result of an unlawful animus, they are entitled to file a complaint with the MCAD within 300 days of the date of the employment action.
Typical adverse employment actions include trespass, loss of job responsibilities, and/or involuntary terminations. In order to be covered under the law, the employer has to employ six or more employees. Some of the more common forms of unlawful discrimination include adverse employment actions based on gender, handicap, sexual orientation, age, race, ethnic background, recovering addiction, and religion. These categories are often referred to as “protected classes.”
The MCAD has both investigatory and adjudicatory powers. A claim must be filed in person at the MCAD, although if the party is represented by an attorney, the attorney will often file the complaint through the mail. The complaint is then logged in with the MCAD and assigned to an investigator. Once this has been done the complaint is then sent to the employer, who has 21 days to answer the complaint. Once this has occurred, the employee is entitled to reply to the employer’s answer. The employer’s answer is called a “position statement,” and the employee’s response is called the “rebuttal.” There is often an “investigative conference” held at this point in which the parties present their respective version of the events to the investigator. At this time, the investigator usually informs the parties that the MCAD will continue the investigation, request additional information from the parties, and potentially talk with possible witnesses.
Within approximately 12 to 18 months, the MCAD will issue a decision which will be either a probable cause finding or a lack of probable cause finding. The probable cause finding means the case will proceed to a public hearing to determine if unlawful conduct took place. For all practical purposes, a finding of a lack of probable cause means the case is over. If there has been a finding of probable cause, the MCAD will order a “conciliation conference” at this time in order to explore the possibility of a settlement. If the settlement conference is unsuccessful, the case will proceed to the public hearing. The hearing is usually scheduled about a year from the date of the settlement conference. If the employee is successful at the public hearing, then he or she may be entitled to back pay damages, emotional distress damages, and attorney’s fees. There are instances where additional damages are awarded but the three mentioned are the most common. Interest at a rate of 12% is usually ordered on the award, although the rate may vary according to the statute.
The above is a brief overview of the MCAD process. If you believe that you have a possible discrimination case, it is a good idea to have an attorney review the case and evaluate its merits. If you are an employer and have been named in a MCAD complaint, it is highly recommended that, prior to sending in an answer to the complaint, you contact an employment attorney to advise you.
Remember, the only person who has legal rights is the person who knows what their legal rights are.
Attorney Timothy F. Stark, Esq. has over 25 years of legal experience in Employment Law, Divorce Law, and Divorce Mediation, with backgrounds in both Human Resource Management and Psychology. Please feel free to contact him by calling (978) 685-8777 or e-mailing him at info@timfstark.com. His law office is located at 805 Turnpike Street, Suite 101, North Andover, MA 01845.