This information is provided by the Fair Employment Project as general guidance only, and is not intended as legal advice. This is merely an overview of the process at the Massachusetts Commission Against Discrimination. Every case is different.
Because of the coronavirus, the Massachusetts Commission Against Discrimination has suspended in-person services. It continues to provide services via telephonic and electronic means. Check the MCAD's website for new developments.
INFORMATION ABOUT EMPLOYMENT DISCRIMINATION
What is illegal employment discrimination?
Employers are supposed to follow a large number of 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. For example, if your boss fires you because she wants to hire one of her family members to do your job, that is not illegal in most situations. (Special rules apply for union members, government employees, and 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, or because you have complained about discrimination. 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.
Generally, it is up to the employee to prove not only what happened, but that what happened amounts to unlawful discrimination. Proving unfairness is not enough.
If you are considering filing a discrimination case, first review the information on the website of the Massachusetts Commission Against Discrimination. mass.gov/mcad/
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 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 Fair Employment Project recommends looking for a law firm, if possible, for representation. 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. And through our collaborations with other organizations and firms, we can sometimes provide or arrange additional low-cost services to eligible clients.
Following is a general overview of the process at MCAD for those representing themselves.
How Do I Start A Discrimination Case?
The first step is to file a complaint (also called a Charge) at the Massachusetts Commission Against Discrimination (MCAD). You MUST take this step first to pursue a discrimination claim, 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 local office of the EEOC, but the EEOC does not have the same enforcement powers as the MCAD. FEP recommends the MCAD process in most cases.
You have to file a complaint within 300 days of the employer’s discriminatory action. It can be tricky to figure out when the 300 days start. If you are not sure about the deadline, the safest thing to do is to file a complaint as soon as possible.
Call before you go to verify the MCAD's intake hours (617-994-6000). When going to file your complaint, you should bring the name and address of your employer and any documents that will help you explain your case. At the MCAD, you will meet 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. 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--which is what happens in most cases--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?
After you file a complaint, the investigation usually includes multiple steps before the MCAD will decide if your case should proceed to a hearing:
1. Position Statement
After you go to the MCAD to file a complaint, the MCAD will send a copy of the complaint to your employer. (In the MCAD’s words, 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 the MCAD usually will give the employer an extra 21 days, sometimes more and sometimes less. When the employer sends its position statement to the MCAD, it also should send a copy to you.
A position statement usually looks like a letter and often has attachments. Most of the time, the position statement is prepared by a human resources person, by a company lawyer, or by a lawyer hired by the company to respond to the complaint. 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 usually referred to as the “rebuttal.” The rebuttal is the most important part of your case during the investigation stage, so you should make it as strong and detailed as possible. Don't try to write like a lawyer. Just explain the facts using plain language.
If you have not already done so, you should request a copy of your personnel record from your employer. (Postal mail the request and send it to the employer.) 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. As another example, if the employer said in the position statement that you were fired for being rude to your boss, but if a form in your personnel record says that you were fired for being late to work, you can say in your rebuttal that the employer is changing its story.
What you are trying to do in the rebuttal is convince the MCAD that the real reason you were fired (or demoted, harassed, etc.) was because of a protected characteristic, such as race, gender, or disability. Here are the kinds of things to 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 to get rid of the old geezers.”
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?
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 white employees 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 2 warnings before being fired, were you given 2 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?
The MCAD will be looking for this type of information in your rebuttal.
If you need additional time to finish your rebuttal, you should call the MCAD as soon as possible to request more time.
3. Investigative Conference
The MCAD may schedule what is called an “investigative conference.” The conference is held at the MCAD and usually lasts about 20 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 what your case is about. It also gives the investigator a chance 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. Probable Cause Finding
After you have submitted your rebuttal, and after the investigative conference (if there is one), the MCAD will eventually issue a decision, either dismissing your case (a finding of “lack of probable cause”) or moving your case to the hearing stage (a finding of “probable cause”). The average time to move from filing the complaint to the end of investigation is about 18 months or so, but it could be shorter or much longer.
If you receive a finding of Probable Cause, 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 to the hearing stage.
What If The MCAD Dismisses My Case?
If the MCAD dismisses your case, you have 10 days to tell the MCAD, in writing, that you want to appeal. If possible, you should personally deliver your request for an appeal to the MCAD to guarantee that it is received within 10 days.
The MCAD will schedule an appeal hearing, which is similar to an investigative conference. At the appeal hearing, you will have an opportunity to explain why the MCAD’s dismissal was wrong. If you prefer, you also can submit a written version of your appeal. If you have discovered new information about your case, you should provide it to the MCAD as part of your appeal. The MCAD denies most appeals, but if you think an error was made you should appeal.
When deciding whether your case should go to a hearing, the MCAD is not supposed to decide which side is telling the truth. That is what happens at a hearing. Instead, the MCAD is supposed to believe what you say in your complaint and rebuttal and determine if you have enough evidence to go to a hearing. If your case is dismissed, you should read the MCAD’s decision carefully. If it looks like the MCAD believed what the employer said, and did not believe what you said, you should argue in your appeal that the MCAD acted improperly.
What Will Happen If I Go To A Hearing And Win?
If you get a finding of Probable Cause, and the MCAD decides that your case should proceed to the hearing stage, then the MCAD will usually appoint an MCAD attorney to prosecute the complaint at no cost to you. (If you prefer, you can hire your own lawyer, but you will have to make arrangements with the attorney regarding fees.)
If your case moves to the hearing stage, you might have a long wait (months or years) before you have a hearing. If you win at the hearing, you will be entitled to “damages,” which is compensation for what you lost as a result of the employer’s illegal discrimination. The damages you might recover include lost pay and emotional distress.
Lost pay is the amount of money you lost based on the employer’s discrimination. For example, if you remained unemployed for one year after being fired and then found another job paying the same amount you used to earn, your lost pay would be one year 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.
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 have to demonstrate your distress.
In addition to lost pay and emotional 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.
When Can I Go To Court?
Under Massachusetts law, if you want to pursue your discrimination case in court, you have to 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.
Some important notes about going to court without counsel: A court proceeding is a formal process that can be especially challenging for those without an attorney. A court will almost never appoint a free lawyer for someone bringing an employment discrimination case. Judges play a gatekeeping role and do not let most employment discrimination cases get to a jury. Judges often dismiss employment discrimination cases before they get very far.
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. What this means is the employers often will stubbornly refuse to settle a case, even if it means they will incur a large amount of legal fees.
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 on a case-by-case basis.
Fair Employment Project, Inc. | 777 Concord Avenue, Suite 302 | Cambridge, MA 02138 | 617.902.0192 | firstname.lastname@example.org