On October 23, 2014, the Boston office hosted Commissioner Sunila Thomas-George, Commissioner Charlotte Golar Richie, and General Counsel Constance McGrane of the Massachusetts Commission Against Discrimination (MCAD) at its semi-annual Breakfast Briefing. The MCAD commissioners and general counsel provided helpful information and advice for employers appearing at the MCAD. Here is a summary of the valuable tidbits the MCAD commissioners and general counsel shared with us.
It will come as no surprise to employers accustomed to long charge processing times at the MCAD that the Commission is short-staffed and underfunded, according to the MCAD representatives. Approximately 3,000 cases are filed each year and the general counsel has only six attorneys on her staff who handle close to 400 cases per year. Currently, the types of charges most often filed are race discrimination, sexual harassment, disability discrimination, and retaliation. The MCAD is also seeing an increase in religious accommodation cases.
The MCAD representatives reported that the MCAD has a review authorization process whereby (1) new charges are screened for timeliness and proper jurisdiction and (2) charges are not issued if they are found to be untimely or if the MCAD lacks jurisdiction over the claims. Although support for its budget requests is the most important factor in advancements to the charge process, the MCAD has also reportedly implemented other strategies in an effort to improve charge processing. These include an early dispute mediation program and predetermination discovery. The general counsel also indicated that she would like to conduct a review of the MCAD’s procedural regulations in 2015.
The MCAD representatives also reminded the audience that pre-dispute employment arbitration agreements are not binding on the MCAD. The MCAD will still take charges filed by employees subject to a binding arbitration agreement.
Tips for Employers on Handling MCAD Charges
The Commission representatives shared the following advice for employers appearing before the MCAD:
- Ensure that the internal charge investigation is prompt, thorough, well documented and, if the employer intends to rely on its investigation as a defense, that it is conducted by a neutral party who does not have a conflict of interest with the subject or witnesses involved in the investigation. In addition, remember that this person may need to testify if the employer intends to rely on its investigation as a defense.
- Remember that individual defendants need to affirm their position statements, or sign their own affidavits. As the MCAD representatives explained, employers often overlook this requirement.
- Get your facts straight the first time and don’t change your reasons during the course of the investigation. This is especially important because the MCAD interprets the burden on employees under the law in Massachusetts as requiring a showing of “pretext only,” meaning that an employer’s changed or inaccurate reasons for its actions, standing alone, can in some circumstances be sufficient to constitute a pretext for discrimination.
- Include information on comparators (individuals outside the charging party’s protected class) who the employer can show were treated similarly to the charging party. This is a critical piece of information for the MCAD in its investigation. The MCAD representatives indicated that employers can request a protective order or in-camera review to protect confidential information.
- Include proof of the legitimate, non-discriminatory reason, and not just conclusory statements. It is not enough to simply articulate the legitimate, non-discriminatory reason; employers should produce some evidence to demonstrate the reason, such as supporting documentation.
- Give the MCAD all supporting documentation up front. The more documentation employers provide to the MCAD to support their actions, show that they followed their own policies, and show that others outside the protected classes were treated in the same manner, the easier it will be for the MCAD to render a decision in the employers’ favor.
Tips for Employers on Policies and Training
Based on their experience with ineffective policies and training procedures, the MCAD representatives provided the following tips for employers regarding effective discrimination and harassment policies and training:
- Include all protected classes in the anti-harassment policy, not just sex.
- Distribute the anti-harassment policy to new hires and annually to existing employees.
- Promulgate a respectful workplace policy and explain what type of behavior will be viewed as unprofessional.
- Require employees to sign acknowledgements of their receipt of discrimination and harassment policies
- Post policies in visible locations where all employees will be able to see them.
- Ensure that employees know with whom they can lodge complaints, other than their immediate supervisors.
- Conduct discrimination and harassment training for all new employees and refreshers for existing employees.
- Train first-level supervisors on how to handle disability and religious accommodation requests, as they often are the first to receive requests from employees.
- Implement progressive discipline policies so that employees know what type of conduct will lead to discipline, as well as as employment termination.
- Promulgate policies addressing pregnancy and gender identity accommodation issues so that management knows how to deal with such issues before they arise.