You may have a case that’s been pending at the Massachusetts Commission Against Discrimination (MCAD) for some time and be wondering what the next steps will be. Prior to 2020, the MCAD’s processing time was often longer than employers and employees would have liked. In Fiscal Year 2019, the MCAD received 3,664, which was a 15% increase over the prior year, and just short of 300 cases had been pending for 18 months or more. The sheer number of cases filed and limited staff presented a barrier to a rapid turnaround. However, the MCAD began 2020 with a solid plan for speeding up case processing.
In 2020, the MCAD issued its long-awaited revised procedural regulations. This was the first complete overhaul of the MCAD regulations since their 1999 enactment. In its press release about the updated regulations, the MCAD noted that the overarching goal of the revisions was “to develop clearer procedural regulations that accurately reflect the agency’s practices and procedures and which are intended to be more easily comprehended by parties and practitioners appearing before the agency.” Simply stated, if parties can more easily understand their roles and responsibilities, the MCAD should be able to process cases more quickly.
The new regulations make it clear that the MCAD is keeping up with the times. They allow the MCAD to serve notices to parties and accept filings of the original Charge of Discrimination by email. This process has proven invaluable in light of the extensive remote working that’s taken place and delays with regular mail.
However, the MCAD’s stated intent to limit employer-requested extensions, which would have moved things along much quicker, appears to have fallen victim to the pandemic. The new regulations provide that pre-determination extensions of time will only be granted if made in writing and “for good cause shown.”
While prior to the COVID-related shutdowns it was unclear whether those changes would result in the MCAD denying requests for extensions of time to Respondents, it has not done so. The MCAD has been fair when it comes to requests for extension in the context of today’s business realities.
Similarly, the new regulations include procedures and require a Complainant to file a rebuttal to the position statement within 21 days. Before that change, there were no formal procedures for rebuttals. Despite the new regulation, we have yet to see a rebuttal rejected on timeliness grounds.
The Regulations present both positives and negatives when it comes to motion practices. On the plus side, there’s now a procedure in place that will allow for the Commission to put an investigation on hold while a motion is pending. For example, an investigator can permit an employer to hold off on filing a Position Statement until after the Commissioner makes a decision on a motion to dismiss.
This will help employers avoid incurring unnecessary attorney’s fees and costs in a case that should be dismissed without an investigation for a number of reasons, such as when the Commission does not have jurisdiction over a claim. We’ve certainly received our share of claims that the MCAD cannot rule upon, but we’ve still had to respond on behalf of our client. The new regulation should save that expense.
On the (arguably) minus side, the parties are now required to confer with one another prior to filing motions when both are represented by counsel. In practice, we haven’t had much success in having an opposing counsel agree to our position on a matter so that we wouldn’t have to file a motion to have it addressed.
Mediation
The MCAD has also tightened its stance on mediation. In many cases, an employer wants to mediate a claim in order to avoid the time and monetary expense associated with preparing an Answer and Position Statement. The new regulations, however, arguably disincentivize employers from mediating on those grounds.
Unlike before, the due date for the responsive pleading is no longer automatically stayed pending the outcome of the mediation because the MCAD wants to know both parties’ positions before the mediation. That may result in fewer attempts at early resolution.
On a related note, a long-term staff member and top-notch mediator, Gilbert May, retired in September. The absence of his many years of experience and knowledge is likely to be felt by the MCAD as well and all parties who respected and trusted his wise insight during the often-tense mediation process.
Staff Turnover
The MCAD is no different than other employers when it comes to staff turnover, and that turnover can delay case processing times, too. In November, Senior Hearing Officer Eugenia Guastaferri and Hearing Officers Judy Kaplan and Betty Waxman retired from the Commission. Ms. Guastaferri and Ms. Kaplan had over 30 years of service, and Ms. Waxman had 20 years at the Commission.
Other employees who departed in 2020 include Nomxolisi Khumalo who was known for her direct, no-nonsense investigation and quick turnaround time on decisions. Attorney Jennifer Laverty is no longer with the Commission, and an attorney-investigator took her position, leaving a gap in the investigator pool. Beth Crosby, a familiar face in the Housing unit, is also no longer with the Commission. Departures of seasoned personnel and the hire of new personnel who may have learning curves may slow processing times, although it is difficult to determine whether that’s the case at this time.
It’s unclear what 2021 will bring for claims of discrimination and whether the MCAD will continue with the remote processes it has put into place this year, such as telephonic Investigative Conferences, and whether it will be able hasten the investigative phase by taking advantage of the new regulations. Regardless, we predict that in 2021 we will see an increase, rather than a decrease, in discrimination claims.