Established in 1946, the Massachusetts Commission Against Discrimination (MCAD) is tasked with investigating,
and resolving cases of discrimination in employment, housing and public accommodations. If you are an individual seeking help from the state about discrimination in the workplace, then the MCAD is the place to turn.
Below, I will first explain the phases for MCAD cases. And then to give some context, I will review some new information out about MCAD investigator caseloads.
The first phase is called the Investigative Phase.
The Investigative Phase
A case begins with an individual -- in an employment case, an employee -- filing a complaint or a "charge" of discrimination at the MCAD. The employer is sent a copy and is required to respond with a Position Statement. Thereafter, the MCAD may call for an Investigative Conference or order other documents to be produced.
The agency's regulations set out that this Investigative Phase is to be completed within 18 months following receipt of the complaint, "unless it is impracticable to do so." 804 CMR 1.13 (3).
The Investigative Phase is formally completed when the MCAD makes a Probable Cause (PC) or Lack of Probable Cause (LOPC) determination. A PC means that the MCAD has concluded that there is sufficient evidence to believe that it is more probable than not that illegal discrimination occurred.
If you are the individual who filed the complaint, you are hoping for a PC. A PC means the case moves on to the next phase.
An LOPC means that the MCAD did not find sufficient evidence to support a conclusion that unlawful discrimination occurred. If you are the employer, you are hoping for an LOPC. An LOPC ends things at the MCAD.
Some Numbers on the Investigative Phase
This summer, the state auditor completed and released a report of its audit of the MCAD. Combined with the MCAD's own 2015 Annual Report, it reveals some interesting information:
As of June 30, 2015, the MCAD had 4,908 cases in the Investigative Phase.
During the initial audit period (July 1, 2012–June 30, 2014), there were just 13 full-time employment investigators state-wide, equaling a caseload of over 300 cases per investigator.
As of approximately 2015, the MCAD had 22 full time employment investigators, resulting in a caseload of approximately 199 cases per employment investigator.
According to its 2015 Annual Report, at the conclusion of the Investigative Phase, the MCAD determined there to be Probable Cause for discrimination in 16% of cases (305 cases out of 1,956 cases) while finding Lack of Probable Cause for discrimination in 84% of cases (1,651 out of 1,956 cases).
What is the significance of these numbers?
Whether an employee or employer, if you have a case at the MCAD, it could be there for a long time. Sometimes, a very long time.
And more than just time, your case will compete for precious investigator time with approximately 200 -- at best -- other cases. That's a lot of competition for attention.
Discrimination cases can be very complex and nuanced. Having your case reviewed by an investigator with several hundred other cases makes it hard for that person to appreciate the complexity and nuances.
If you are an employee, it can also be an uphill battle to get a PC. Remember, only 16% of cases in 2015 resulted in a PC. While I have represented individuals who have received a PC and have seen non-represented individuals get a PC, the numbers suggest it occurs in a minority of cases to be sure.
It is important to understand the import of these numbers before bringing a case at the MCAD. Contact me if I can help.
Doorways Employment Law is a virtual employment law practice, leveraging the power of technology to connect with clients in the most efficient and convenient way possible. It specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including on employment discrimination matters. Contact Doorways Employment Law for an employment law consultation.