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 intake procedures.
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THERE IS A 300-DAY FILING DEADLINE AT THE MCAD.
Sometimes it is not clear when the 300-day “clock” starts. If you are not sure about the deadline, the safest thing to do is to file a complaint as soon as possible.
Note that other types of legal claims might have different deadlines -- some longer, some shorter.
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WHAT IS UNLAWFUL DISCRIMINATION?
Covered employers may not treat you differently and worse because of your race/color, national origin, age (over 40), sex, pregnancy, disability, religion, sexual orientation/identity/expression. They may not retaliate against you 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.
Discriminatory harassment is also unlawful.
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.
If you are considering filing a discrimination case, first review the information on the website of the Massachusetts Commission Against Discrimination (MCAD).
DO I NEED A LAWYER TO FILE A DISCRIMINATION COMPLAINT? CAN I DO IT 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 allows your case to move past the investigation stage, then it 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 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.)
There is a 300-day filing deadline for a complaint at 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. The intake process at the MCAD is subject to change, so check with them to learn the current procedure. There is no filing fee at the MCAD.
The person filing a Complaint at the MCAD is the "Complainant."
The employer (or other entity) you are bringing the claim against is the "Respondent."
THE MCAD INVESTIGATION PROCESS
There are several parts to the MCAD process. The first part is called the investigation stage, when the MCAD will figure out if your case should forward to the next stage.
If the MCAD decides your case should move forward, it will issue a “probable cause” finding, and your case will then go to the next stage.
Although the numbers change over time, usually only about 1 or 2 out of every 10 cases gets a “probable cause” finding and moves forward.
The investigation includes multiple steps.
1. Your Complaint
The MCAD will review your facts to see if there is enough to support a Complaint (also called a "Charge of Discrimination).
Accepting your Complaint does not necessarily mean the MCAD thinks you have a strong case. It means you have met the minimum requirements to open an investigation.
If the MCAD accepts your Complaint (Charge), it will then send the Complaint to the employer.
2. The employer's Position Statement (answer to your Complaint)
The MCAD will tell the employer to provide a response to the Complaint within 21 days of when they receive it. 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. It is almost always prepared by a lawyer.
The employer will argue that it did not discriminate against you, and that it had legitimate nondiscriminatory reasons for what it did. 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.
3. Your Rebuttal
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 (employee file) 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 that in your Rebuttal.
Focus on discrimination and the facts that support your claim that the real reason you were fired, demoted, harassed, etc. was 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 (such as complaining of discrimination or requesting an accommodation).
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?
4. 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 15-45 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.
It is basically a question-and-answer session where the investigator asks you and the employer about what happened.
The employer's lawyer does not get to question you at this conference. And you are not allowed to ask the employer questions.
Answer to the best of your ability and memory. Stick to facts. Keep your answers short and to the point.
Don't rehash the whole story. The investigator is looking only to fill in any gaps and flesh out details.
The investigator at (or after) the investigative conference might request documents or additional information.
5. 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, on track toward a "public hearing."
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 AFTER THE INVESTIGATION?
If the MCAD finds a "lack of probable cause" (LOPC) (or occasionally, "lack of jurisdiction") 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 IF MY CASE GOES ALL THE WAY TO A PUBLIC HEARING AND I 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. Emotional distress damages could be $0 or more 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. MCAD publishes its decisions on its website.
CAN I GO TO COURT?
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, the time limits are different.
FEP recommends that you consult a law firm to discuss court options and deadlines.
(A court will almost never appoint a free lawyer for someone bringing an employment discrimination case. And there is hardly any free help for these cases.)
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 legal claim. 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.