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September 5, 2014

Legal Update
Christine M. Netski

Massachusetts Commission Against Discrimination issues annual report for 2013

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The Massachusetts Commission Against Discrimination (MCAD) recently issued its Annual Report for 2013 providing a useful window into the activities of the agency this past year. The report reflects that, as in past years, the Commission remains woefully understaffed in relation to its workload, resulting in long delays in processing cases.

The Commission continues to be overwhelmed with new complaints, receiving more claims than it can resolve each year. In 2013 it received 3,224 new complaints. Consistent with the pattern in prior years, the vast majority (over 80%) of the new complaints concerned employment discrimination, with housing discrimination claims accounting for 11% of the filings. The total number of open cases at the investigative stage rose to almost five thousand (4,959), which translates to an average caseload of over 300 cases per investigator. In 2013 each investigator was assigned approximately 180 new cases yet, on average, they each closed only 108 cases during the year. The average time from case filing to the completion of the investigatory process remained 18 months, less than the historical high of two years from filing to disposition, but still far from ideal.

During 2013 the Commission issued a total of 1732 causal dispositions across all categories of discrimination. Of note, the agency’s determinations at the investigative stage strongly favor respondents, a pattern that has existed for a number of years. A finding of Probable Cause issued in only 24% of the cases in which a causal decision was issued; 76% were dismissed for Lack of Probable Cause. Probable Cause findings were slightly higher than the average in housing cases (26%) and lower (23%) in employment cases.

In addition, another 1457 cases were administratively closed at the investigatory stage of the process. The largest number of these cases, 61%, were settled either during the post-probable cause conciliation process or while the investigation was pending; another 20% were removed to court by the complaining party.

The Annual Report also provides a window into the size of settlements; it details the Commission’s noteworthy settlements at the conciliation and hearing stages. The largest monetary settlement for an employment case was $110,000 in a disability discrimination case brought against a large hotel chain. The complainant alleged that the employer failed to accommodate his disabilities and wrongfully terminated him. In the other employment cases listed in the report, the monetary settlements ranged from $2,000 to $50,000. The largest settlement of a housing discrimination case was $65,000 and also involved allegations of disability discrimination.

During the period covered by the report, the Commission had 714 cases pending at the administrative hearing stage. It held 32 public hearings and another 65 cases settled.

Of those cases that remained open and proceeded to hearing, complainants won only about half the time. The Commission issued 28 decisions after hearing; the vast majority were employment cases. Claims of gender bias, including sexual harassment and pregnancy, predominated with disability claims the second most common claim decided in 2013. Complainants in employment cases were victorious a little more than half the time (54%). They had the greatest success in cases involving public accommodation discrimination. There were two decisions issued in 2013 in this category, both of which resulted in favorable decisions for complainants.

The report also provides insight into the nature of the relief awarded to successful complainants. The largest monetary awards were for emotional distress; $75,000 was awarded in three different matters, one housing and two employment cases. The average emotional distress award was slightly more than $30,000. The Commission also awarded compensatory damages such as back pay in a number of cases and imposed civil penalties of $10,000 in two employment cases. It also required affirmative relief in the form of reinstatement, promotion or training in a number of the cases. The Full Commission upheld the all of the decisions that were appealed from the hearing stage, either in whole or in part.

Perhaps the most interesting conclusion to draw from the report is that very little has changed at the Commission over the last few years. The volume of cases in 2013 is consistent with prior years and the Commission’s decisions continue to reflect a relatively even-handed perspective at both the investigative and adjudicatory stages of the process. There have been several important personnel changes at the agency in the past year. The Commission appointed a new General Counsel, Constance McGrane, last fall. The former Chair of the Commission, Julian Tynes, resigned in February 2014. Commissioner Jamie Williamson replaced him as Chair and, in June of this year, the Governor appointed Charlotte Golar Richie as the third Commissioner. It remains to be seen whether these recent changes in leadership will result in any significant changes at the Commission in the future.

For questions or to request additional information, please contact Christine M. Netski (Chair, Employment Law Group) or your attorney contact at Sugarman Rogers.