FILING A CLAIM OF EMPLOYMENT DISCRIMINATION IN MASSACHUSETTS
This information is provided by the Fair Employment Project as general guidance only. It is not intended as legal advice. This is merely an overview of the usual process at the Massachusetts Commission Against Discrimination.
Check the MCAD's website or call 617-994-6000 for information about office hours and the latest developments concerning COVID-related procedures.
Employers are supposed to follow various rules created by the Massachusetts legislature, the U.S. Congress, government agencies, and the courts. These rules allow employers to discipline or fire workers, as long as the reason for the action is not illegal.
What this means is that employers do NOT necessarily have to treat workers fairly.
(Special rules might apply to union members, government employees, employees with contracts, and some other types of jobs.)
What IS illegal is for employers to treat you differently and worse BECAUSE OF your race/color, national origin, age (over 40), sex, pregnancy, disability, religion, sexual orientation/identity/expression; because you have complained about discrimination; or because you had taken some other action that the discrimination laws protect. There are also federal and state protections against discrimination based on military service/veteran status.
And with some exceptions, employers may not ask applicants or employees to furnish certain criminal information and may not take an adverse employment action against an applicant or employee because of criminal history information the employer has obtained unlawfully.
It is up to the employee (or applicant) to prove not only what happened, but that what happened amounts to unlawful discrimination. Proving unfairness is not enough.
Do I need a lawyer to file a discrimination case? Can I do this alone? Should I?
You are not required to have an attorney to file a discrimination case, and most people who file discrimination cases at the MCAD (thousands each year) file their complaints without counsel. (The MCAD will not provide any legal assistance to you at the first stage of a case. If the MCAD later decides that your case should proceed to the hearing stage, then the MCAD will usually appoint an MCAD attorney at that point to prosecute the complaint at no cost to you. See below.)
BUT employers will almost always have an attorney representing them. So, it is best to look for legal representation, if possible. It can be challenging, however, to find attorneys in law firms to handle discrimination cases affordably. And most legal-aid organizations will take very few, if any, discrimination cases for free.
Fair Employment Project is trying to fill that gap. We provide appropriate self-help tools to those representing themselves at MCAD.
Following is a general overview of the process at MCAD for those representing themselves.
How do I start an employment discrimination case?
The first step is to file a complaint (also called a Charge) at the Massachusetts Commission Against Discrimination. You must take this step first to pursue most employment discrimination claims, even if you want to pursue your case in court. (See below about going to court.) As an alternative, you can file a complaint at the federal Equal Employment Opportunity Commission (EEOC), but the EEOC does not have the same enforcement powers as the MCAD. (Note: If you are federal employee, you probably have to go through an EEOC process, not the MCAD.)
When you are ready to file your complaint, you should have the name and address of your employer and any documents that will help you explain your case. At the MCAD, you will talk with an intake person, who will listen to your story, ask questions, and prepare a complaint for you to sign.
Will I get a hearing at the MCAD?
Generally, there are two parts to a case at the MCAD. The first part is called the investigation stage, when the MCAD will figure out if your case should go to a hearing. Think of the investigator as a gatekeeper.
If the MCAD decides your case should go to a hearing, it will issue a “probable cause” finding, and your case will then go to the second stage, called the hearing stage.
Although the numbers change over time, usually only about 1 or 2 out of every 10 cases gets a “probable cause” finding and goes to the hearing stage.
If the MCAD decides your case should not go to a hearing, it will issue a “lack of probable cause” (LOPC) finding and dismiss your case.
How does the MCAD determine if my case should go to a hearing?
The investigation includes multiple steps.
1. Position Statement
The MCAD will send a copy of the complaint to your employer. (You are called the “complainant” and the employer is called the “respondent.”) The MCAD will tell the employer to provide a response to the complaint within 21 days. The employer’s response is called a “position statement.” Employers often will ask for more time to provide a position statement, and extensions are commonly granted. When the employer sends its position statement to the MCAD, it should also send a copy to you.
A position statement usually looks like a long letter and often has attachments. Most of the time, the position statement is prepared by a lawyer. In the position statement, the employer will argue that it did not discriminate against you. Position statements often will try to make it look like you were a bad employee, a complainer, or someone who cannot be trusted.
The employer is required to sign the position statement under oath. If the position statement is not signed under oath, you should ask the MCAD to make the employer sign the statement under oath.
Once you receive the position statement, the MCAD will give you 21 days to respond. Your response is referred to as the “rebuttal.”
It is very important to submit a rebuttal. If you need additional time to finish your rebuttal, you should contact the MCAD investigator to request an extension.
When writing your rebuttal, don't try to write like a lawyer (even if the position statement is written by a lawyer). Use plain language. Keep it simple. Stick to facts.
If you have not already done so, you should request a copy of your personnel record from your employer. Sample letter is on this page. You should compare what the employer said about you in the position statement to what is in your personnel record. For example, if the position statement said that you were repeatedly warned about being late to work, are there warnings in your personnel record? If not, you can say in your rebuttal that the employer’s statement that you were warned is not supported by your personnel record.
Focus on discrimination and the facts that support your claim that the real reason you were fired, demoted, harassed, etc. was because of a protected characteristic, such as race, gender, or disability.
Here are the kinds of things you might mention in the rebuttal:
>Did you ever hear any negative comments (or did anyone tell you they heard any negative comments) about people like you? For example, if you think you were fired because of your age, did anyone ever say something like, “We need younger people here.”
>Are the reasons given by the employer in the position statement true? For example, if the employer said you were fired for being late to work, were you late to work? Do you have anything you can show to the MCAD to prove that you were not late to work? Do you know of anyone who could sign a statement for you saying that you were not late to work on the days the employer said you were?
>Were other employees treated the same as you? For example, if you are Black and the employer says you were fired for being late to work, were employees not of your race also fired for being late to work?
>Did the employer follow its own policies? For example, if there is an employee handbook that says employees will receive two warnings before being fired, were you given two warnings before being fired?
>Did the employer favor certain categories of people for promotions or hiring? For example, if you were a female cashier in a supermarket, were most of the cashiers women and all of the managers men?
3. Investigative Conference
The MCAD may schedule an “investigative conference.” The conference might be held at the MCAD offices or might be done remotely. It usually lasts about 20-30 minutes.
THIS IS NOT A “HEARING.” IT DOES NOT MEAN THE MCAD HAS ISSUED A PROBABLE CAUSE FINDING IN YOUR CASE.
The purpose of the conference is to give the investigator a general sense of the case and to ask for more information.
As the complainant, you will be given the chance to speak first. You typically have about 5-10 minutes to explain what happened in your case and why you believe you were treated differently and worse. The employer will then give its side of the case. If the employer is represented by a lawyer, the lawyer will make this presentation (although someone, and sometimes several people, from the employer will be with the lawyer).
You might be asked if you want to respond to what the employer said. This is not a chance to repeat what you said before but to respond, briefly, to anything the employer said that you think is wrong or misleading.
4. Additional requests for information
Your investigator might ask for additional information from you and/or the employer. Those requests might be in writing or by phone.
Make sure your investigator has all your current contact information (email, phone, postal mail) and be sure to check your voice messages and mail – including spam folders -- regularly. You don’t want to miss any correspondence from the MCAD.
5. Conclusion of the investigation stage
After you have submitted your rebuttal and after the investigative conference (if there is one), the MCAD will issue a decision, either dismissing your case (a finding of “lack of probable cause”) or moving your case forward (a finding of “probable cause”).
The average time to move from filing the complaint to the end of investigation is about 18-24 months or so, but it could be shorter or much longer.
What if I get a finding of “probable cause”?
A probable cause finding is the green light to move forward.
At this stage, the MCAD will usually appoint an MCAD attorney to assist you. Or you can hire your own lawyer.
After a probable cause finding, the MCAD usually schedules a “conciliation” meeting with the parties to see if the matter can be settled. If the case does not settle, then it typically moves forward.
There will then be a “discovery” process (where the parties exchange information and documents and take deposition testimony) in preparation for the hearing. The discovery process might take months or years.
What if the MCAD dismisses my case?
If the MCAD finds a "lack of probable cause" (LOPC) and dismisses your case, you have 10 days to notify the MCAD, in writing, that you want to appeal. It is very important to make this deadline.
The MCAD will then schedule an LOPC appeal date. No formal testimony is taken at the LOPC appeal, but you will have an opportunity to explain why the MCAD’s dismissal was wrong. The employer will have an opportunity to respond.
You also can submit a written statement in support of your appeal.
If you have discovered new information about your case, you can provide it to the MCAD as part of your appeal. Be ready to explain how it helps your case, and why it was not presented before.
The MCAD investigator is not supposed to decide which side is telling the truth about the important facts in the case. So, you should read the MCAD’s decision carefully. If it looks like the MCAD investigator believed what the employer said, and did not believe what you said, on important facts, then you can point that out in your appeal.
What happens if I go to a hearing and win?
If you win at the hearing, you will be entitled to compensation for what you lost as a result of the employer’s illegal discrimination. Damages might include lost pay and emotional distress.
For example, if you remained unemployed for six months after being fired and then found another job paying the same amount you used to earn, your lost pay would be six months of your old pay. You are required to look for another job, so if you did not look for another job after being fired, you might be prevented from getting lost pay from the employer. Keep records of your job search.
Emotional distress damages are designed to pay you for any mental or emotional distress you suffered as a result of the discrimination. At the MCAD, emotional distress damages tend to fall in the range of $5,000 to $100,000, although it could be $0 and it could be greater than $100,000, depending on what evidence you present to demonstrate your distress.
The employer also might be required to pay your attorney’s fees, interest, and a penalty. Generally, your attorney would be entitled to the attorney’s fees, you would be entitled to the interest, and the state would keep the penalty. Sometimes, the MCAD will order other remedies, as well.
Under Massachusetts law, if you want to pursue your discrimination case in court, you must file your court complaint within three years of the discrimination. If your case is still going on at the MCAD, you should notify the MCAD that you have decided to proceed in court. If the MCAD has dismissed your case, you are still allowed to file a claim in court, but you must do so within three years of the discrimination. The 3-year "clock" to go to court does not stop while the case is at MCAD.
If you are pursuing a claim under federal law (such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, or the Americans with Disabilities Act), the time limits are different. You first need to obtain a “right-to-sue” letter from the EEOC. You will then have 90 days to file a claim in court.
A court proceeding is a more formal process than the one at MCAD. It can be especially challenging for those without legal representation. And calculating the filing deadlines can sometimes be tricky. A court will almost never appoint a free lawyer for someone bringing an employment discrimination case. And there is little, if any, free help for these cases. We recommend consulting with a law firm as soon as possible if you are considering a court case.
Will an employer want to settle my case?
Employees often think that an employer will want to do whatever it can to keep a discrimination case out of the newspaper. This might be true in some cases, but most employers, particularly larger employers, are used to dealing with occasional stories like this, so they are usually unwilling to pay a settlement just to avoid a newspaper story. (Thousands of discrimination claims are filed every year in Massachusetts; the media will be interested in a tiny fraction of them.)
Employees also routinely think that employers will not want to incur legal fees to have to deal with a complaint. Employers are never happy to incur legal fees, but they are often more concerned about what would happen if they settle a complaint. They worry that if they settle one complaint, other employees will start filing complaints just to get a settlement.
At the early stages of a case, some employers will refuse to discuss settlement at all. Or an employer might be willing to settle a case for a small amount of money, maybe a few weeks’ pay, more or less. Occasionally, where the employer is more concerned about the case (you cannot expect the employer to tell you this, of course), it might be willing to pay greater amounts, but this varies greatly.
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