Posts from the ‘law’ Category
April 18, 2017:- If an employer believes that an employee’s disability poses a safety threat, may it re-assign or terminate that employee?
Until today, the answer to that question was this: only if the employer can prove an affirmative defense by demonstrating a “reasonable probability of substantial harm.” That is the standard set by the Massachusetts Commission Against Discrimination (MCAD) in its guidelines. Today the Supreme Judicial Court (SJC) decided that the MCAD guidelines are wrong. For the text of the decision in Gannon v. City of Boston click here. It involves a concussed MMA fighter/police officer, by the way.
After explaining why the MCAD is wrong to place the burden of proof on the employer (e.g. lack of statutory authority), the SJC stated that what the employer bears is the burden of production. So in a case where the employer’s decision is based on the employee’s disability, in order to avoid liability for discrimination the employer must show “specific evidence that the employee would pose an unacceptably significant risk of serious injury to the employee or others.” Then, when the employer has met this burden of production, the employee must prove that s/he is “capable of performing the essential functions of the job without posing an unacceptably significant risk of serious injury to the employee or others.”
The distinction between the burden of proof and the burden of production is important. The burden of proof must remain with the plaintiff employee, said the SJC. Contrary to the MCAD’s guidelines, employers do not have to raise the affirmative defense and then prove by the preponderance of the evidence the existence of “reasonable probability of substantial harm.” Rather, after the employer has shown an “unacceptably significant risk of injury” the onus is on the employee to prove that she or he can, in fact, do the job without posing such a risk.
In a nutshell: This decision delivers a subtle but important victory for employers.
March 31, 2017:- Today the Appeals Court issued its decision in CMJ Management Co. v. Wilkerson, a landlord-tenant case from the Boston Housing Court. After the tenant failed to comply with the pre-trial orders, the judge struck the demand for trial by jury.
The Appeals Court held that the judge should not have struck the demand without first considering “lesser sanctions.” But it also made clear that Housing Court judges do have the discretion to impose the sanction of striking a jury-trial demand, so long as the judge takes into account the tenant’s culpability, any prejudice to the landlord, and the deterrent effect. The right to jury trial is fundamental but it is not absolute.
February 23, 2017:- If you are charged with discrimination and you file a motion to dismiss for lack of jurisdiction, must the Massachusetts Commission Against Discrimination (MCAD) rule on your motion before launching an investigation? No, not at present. But that will change if H. 775 becomes law.
Titled “An Act Streamlining the Investigation Process of Discrimination Complaints,” the bill would require the MCAD to adjudicate a respondent’s motion first and start its investigation only if it determines that jurisdiction is proper.
Why does this matter? The main reason is the constitutional principle of the separation of powers: an executive agency should not hale people in if the Legislature has said it should not. For example, when it enacted Chapter 151B the Legislature said that the MCAD would have no jurisdiction to investigate businesses with fewer than six employees (the small-business exemption). So when the MCAD does investigate businesses with fewer than six employees it is, in effect, exercising the legislative function by re-writing the statute.
But there are pocket-book reasons too. Defending against a charge of discrimination can prove costly, which rather stacks the deck in favor of the complainant who is represented either by a lawyer working on a contingent-fee basis or by the MCAD itself. Add to that the MCAD’s institutional bias toward early resolution (which is not necessarily a bad thing) and you have an incentive for respondents to fold faster than Superman on laundry day, as Jerry Seinfeld put it.
As things stand a respondent will be tempted to settle at a commission-mandated conciliation conference early on, even if the case should never have been on the agency’s docket in the first place. Real money is at stake here, and business owners should not have to fork over for claims that should be thrown out on jurisdictional grounds. That is not an efficient use of resources. Screening out cases like these would allow businesses to devote those resources to other purposes, e.g. improving products and services to benefit their customers and creating new jobs.
The bill has been assigned to the Joint Committee on the Judiciary. Stay tuned for updates, and click here for a previous post on this subject.
February 14, 2017:-Today the highest court in Massachusetts marked St. Valentine’s Day by demonstrating its love for free speech.
The question was this: If bloggers accuse a scientific consulting company of fraud, questionable ethics, and intentionally manipulating findings, may the company sue the bloggers for defamation? The answer: No, not in Massachusetts, at least not if the company is providing expert testimony in high-profile litigation.
In a case connected to the Deepwater Horizon explosion and oil spill, the Supreme Judicial Court (SJC) considered the defamation complaint one of BP’s experts, Chemrisk, had brought against two environmental activists. The activists wrote that Chemrisk had engaged in fraud and “intentionally manipulated findings.” Relying on the anti-SLAPP statute, they had asked a lower court to dismiss Chemrisk’s lawsuit. The lower court denied the motion, but the SJC essentially overturned that denial and, to boot, awarded the activists their costs and legal fees. To read the SJC decision, click here.
The anti-SLAPP statute protects defendants not only in directly petitioning governmental bodies, but also in making “any statement reasonably likely to enlist public participation” in that petitioning effort effort. According to the SJC, the activists’ blog post was “part of [their] ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and closes with an implicit call for its readers to take action.”
Today’s decision represents a very welcome victory for freedom of speech.
February 9, 2017:- Earlier this month the Massachusetts Commission Against Discrimination (MCAD) announced a significant cut in its backlog of cases.
In 2016, the agency substantially reduced the number of cases that were more than 2 years old. Of the 3,811 investigations currently open at the MCAD, just 318 remain over 2 years old, down from 1,134 in 2015, a reduction of 72%.
Approximately 3,000 new complaints are filed with the MCAD every year, so the dramatic reduction in the old cases is quite an achievement. Complainants and respondents alike should hope that the agency manages to maintain this level of efficiency.
February 3, 2017
February 3, 2017:- The Equal Employment Opportunity Commission (EEOC) is soliciting public comment on its proposed new Unlawful Harassment Enforcement Guidelines. You can read the guidelines and comment on them here.
One item that employers should note: Harassment of a “transgender individual ” can include “using a name or pronoun inconsistent with the individual’s gender identity in a persistent or offensive manner.”
The word “or” means that the use of the pronoun/name need only be offensive, and not necessarily persistent, in order to qualify as harassment under these enforcement guidelines.
January 24, 2017
May a hospital fire employees who refuse the flu vaccine on religious grounds? Saint Vincent Health Center in Erie, Pennsylvania, must have thought so back in 2014 when it terminated the employment of six vaccine refuseniks, but now that it has agreed to shell out $300,000 in back-pay and compensatory damages it probably realizes that the short answer is no. The Equal Employment Opportunity Commission (EEOC) press release states:
“While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer’s Title VII duty to provide reasonable accommodation for religion… In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer’s operations.”
Last year I wrote an article about Boston Children’s Hospital fending off a discrimination complaint after it fired an employee who had refused the flu vaccine on religious grounds. The judge found that the hospital had offered reasonable accommodations and the accommodation that the employee requested would have imposed an undue hardship on the hospital.
The lesson for health-care providers? If employees object to the vaccine on religious grounds, work hard with them to devise some reasonable accommodations and document those efforts carefully and thoroughly.
January 23, 2017
President Reagan had this to say about the status quo: It’s Latin for “the mess we’re in.”
Wouldn’t it be great if we shook up the status quo here in Massachusetts by starting to roll back the regulatory state?
Representative Peter Durant (R-6th Worcester) is sponsoring a bill to do just that. It’s called “An act streamlining the investigation process of discrimination complaints” (HD 133) and it would bring a much-needed reform to the Massachusetts Commission Against Discrimination (MCAD).
And that’s the reason for this request. I am asking you to call or email your state representative and ask him/her to co-sponsor the bill. The deadline for signing on as a co-sponsor is Friday, February 3, by the way.
We’re trying to solve a real problem here. Running a small business is hard enough without having to deal with unfair charges of discrimination. But as a report by the State Auditor showed, the MCAD routinely investigates cases that are outside its statutory remit. This not only contributes to the agency’s four-year backlog, but is also fundamentally unfair to the individuals who are haled in and investigated without justification. Click here for my article on the subject in the Massachusetts Bar Association’s Lawyers Journal.
The goal of Representative Durant’s bill is simple: To ensure that the MCAD only handles cases where it actually has jurisdiction.
That’s pretty reasonable, wouldn’t you agree?
The bill would not take away anybody’s rights, and it would not make it harder for people to file discrimination complaints. It would simply require the MCAD to investigate a complaint if — and only if — it has the legal authority to do so.
The bill even puts the onus on the respondent (the person being accused of discrimination) to apply the brakes. A respondent would have to file a motion to dismiss in order to stay (i.e. pause) the investigation until the MCAD determines that it does, in fact, have jurisdiction.
That’s even more reasonable, isn’t it?
Now we need co-sponsors. Building a strong list of co-sponsors will send a message that the measure has broad support among politically engaged and active citizens — citizens like you.
So would you set aside just five minutes today to make one phone call or (if you prefer) send one email?
If you don’t know the name of your state representative, go to malegislature.gov, click “Find Your Legislators” on the left side of the page, and fill in your address. When you see your representative’s picture, click the name and the contact details will appear.
Then please call your representative’s State House number or send an email.
Tell the aide that you are a constituent and you want your representative to consider sponsoring “An act streamlining the investigation process of discrimination complaints” (HD 133) sponsored by Representative Peter Durant. Close by thanking the aide for their time and for the representative’s consideration. And that’s it!
So will you set aside five minutes to help shake up the status quo?
P.S. Just in case you want to know exactly what the bill says, here is the text in full:
“SECTION 1. The second paragraph of section 5 of chapter 151B as appearing in the 2014 Official Edition is hereby amended by inserting after the first sentence the following:- If within 21 days of service of the complaint a respondent files a motion to dismiss for lack of jurisdiction such a motion shall act as an automatic stay of the investigation pending the adjudication of the motion. The investigation shall not resume unless and until the commission determines that it has jurisdiction.”
January 6, 2017
Must a charity that offers free reconstructive surgery to female victims of domestic violence also provide those services to a gay man? No, said the MCAD in a decision last September. Only two mont…
Source: OK to exclude gay men, says MCAD
Must a charity that offers free reconstructive surgery to female victims of domestic violence also provide those services to a gay man? No, said the MCAD in a decision last September. Only two months earlier the Legislature and Governor had prohibited places of public accommodations from excluding men from women’s restrooms and locker rooms, so you might think the case would have grabbed the odd headline, but apart from this Mass Lawyers Weekly article it received surprisingly little media attention.
The respondent was the R.O.S.E (Regaining One’s Self Esteem) Fund, a non-profit that seeks to help women who are the survivors of domestic violence. In 2008 it declined to extend its services to Kevin Doran, whose male partner had assaulted him, leaving him with broken teeth and facial bones. With the support of Gay & Lesbian Advocates & Defenders (GLAD), Mr. Doran argued that the ROSE Fund is a place of public accommodation and that by turning him away it had violated the Massachusetts anti-discrimination laws.
In 2014 an MCAD hearing officer ruled in favor of the ROSE Fund, finding that the organization was not a place of public accommodation. In its appeal brief GLAD said the decision meant that “ROSE can now discriminate not only against men, but also on the basis of race, national origin, religion, sex, sexual orientation, and disability as well.”
Nevertheless the full three-member Commission upheld the 2014 decision on First Amendment grounds:
“The U.S. Supreme Court has recognized the venerable history of the public accommodation laws in Massachusetts, but when applied to expressive activity, the laws may not act to compel certain speech in violation of the First Amendment.”
For that reason, the Commission held that “a private charity set up with the express purpose of serving a narrow community may be allowed to make choices about whom to serve, based on the purpose of the organization and consistent selection criteria.”
This is a very narrow ruling. The MCAD limits its First Amendment expressive-activity exception to a thin sliver of entities: tax-exempt corporations set up to serve a “narrow community,” as opposed to regular businesses and individuals who do not have tax-exempt status and cater to the general public. The decision sits awkwardly alongside expressive-conduct cases from other jurisdictions such as Elane Photography (photographers fined for refusing to photograph same-sex commitment ceremony) and Barronnelle Stutzman (flower arranger fined for refusing to design arrangement for her friend’s same-sex wedding). In those cases, the fact that the defendants’ businesses consisted of expressive activity did not exempt them from the legal obligation to provide their services at same-sex weddings. If those are not examples of the state “compelling certain speech” I don’t know what is.
And as for why tax-exempt corporations should have greater free-speech rights than the rest of us, that is not something the MCAD’s Doran decision addresses.
November 29, 2016:- In the general election the voters of Massachusetts approved a law to legalize, tax, and regulate marijuana. It was a convincing eight-point win for the legalization campaign: 54% to 46%. In my home town, Amherst, the margin was dramatically larger: 75% to 25%.
How the new law will affect Amherst and the surrounding communities was the focus of a forum I moderated recently for BLAAST (Business Leadership for Amherst Area Strategies) a joint program of the Amherst Area Chamber of Commerce and the Amherst Business Improvement District. To watch the video, click here. To read the related article in Business West, click here.
Given the nature of my practice, a few people have asked me about the effect of legalization on trademarks, e.g. will marijuana sellers be able to register their trademarks? Two facts are relevant.
The first is that there trademark owners can protect their marks via state law and federal law. Registering a mark with the state only protects it within that state, of course. For example, I have registered my mark (the flying-V logo) in Massachusetts, the state where I am admitted to practice law. If some lawyer started using the same mark in California and I sued for trademark infringement, my Massachusetts certificate of registration would not be sufficient evidence to afford me an automatic courtroom victory. To have the presumptive exclusive right to use my mark nationwide I would need to register it federally with the United States Patent & Trademark Office (USPTO).
The second important fact is that on the subject of marijuana there is now a clear tension between federal law and state law. In 1970 Congress passed the Controlled Substances Act, which prohibits the cultivation, possession, and distribution of marijuana. The Supreme Court of the United States upheld the statute in 2005, ruling that Congress had the necessary constitutional authority under the Commerce Clause. And although the People of Massachusetts have enacted the Regulation and Taxation of Marijuana Act, Congress has not repealed the Controlled Substances Act.
Nor has Congress amended the federal trademark statute, the Lanham Act. This matters because the Lanham Act only allows the registration of trademarks that are used in connection with lawful activities, which excludes the sale of marijuana (a federal crime). For so long as the Controlled Substances Act and the unamended Lanham Act remain the law of the land, it seems highly likely that the USPTO will carry on refusing to register marks used in connection with the sale of marijuana.
As a result of this federal-state tension, a few constitutional questions come to mind. For example, doesn’t the Supremacy Clause mean that the Controlled Substances Act preempts state law in this field? No. Why not? Because the statute itself expressly says so (section 903, if you’re interested). Nevertheless, couldn’t the federal government compel Massachusetts to enforce the Controlled Substances Act? No. Why not? Because of the Tenth Amendment.
So could the trademark section in the Corporations Division of the Massachusetts Secretary of the Commonwealth allow marijuana sellers to register their marks at the state level? My answer to this question is forthright and unequivocal: it depends.
On the one hand, the applicable state statute prohibits the registration of marks that consist of or comprise “immoral… or scandalous matter.” In view of the voters’ decision to legalize marijuana it seems unlikely that a judge would find that the drug qualifies as immoral or scandalous any more. Under Massachusetts trademark law, therefore, marijuana trademarks are beginning to look registrable.
On the other hand, there is a big difference between not enforcing the federal Controlled Substances Act and positively aiding and abetting its violation, a criminal offense under Section 846. This means that state trademark officials in Boston who register a mark that the applicant expressly uses in connection with the sale of marijuana could face federal criminal charges.
Would that happen? I doubt it? Could it happen? Yes. Some future U.S. District Attorney for the District of Massachusetts prosecuting Secretary of the Commonwealth William F. Galvin for issuing a certificate of trademark registration to owners of, say, BUDS-U-LIKE is not beyond the realm of possibility. At the very least, the idea could serve as the basis for a book, albeit one with very limited appeal destined for rapid remaindered status.
But, more realistically, what if an applicant uses the mark in connection with other products, not just marijuana, and makes no mention of marijuana in the state trademark application? Now that is a much more practical area of inquiry. Stay tuned.
October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.
The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.
Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.
But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis. The footnote in question is number 6 on page 15.
October 26, 2016:- With less than a fortnight to go until the general election, now is the time to start thinking about the day after.
In addition to choosing the state’s presidential electors, in 13 days’ time Massachusetts voters will elect the state legislature, officially known as the Great and General Court of Massachusetts. Perhaps “elect” is too strong a word given that almost 80% of the seats are uncontested, earning Massachusetts a competitiveness ranking of 44 out of 50. Nevertheless, even without the ordeal of an actual race many freshly re-elected politicians tend to experience feelings of relief and generosity of spirit, which makes Election Day + 1 an ideal time to ask them for a favor.
If you are willing to make one post-election request of your state representative and senator, please consider asking them to co-sponsor a bill to restore some balance to the Massachusetts Commission Against Discrimination (MCAD). The goal is quite modest. If enacted, this piece of legislation would require the MCAD to make sure that it only handles cases that fall within its jurisdiction. In fact it does not even go that far. It puts the onus on the respondent (the person being accused of discrimination) to file a motion to dismiss, which would automatically stay, i.e. pause, the investigation until the MCAD determines that it does, in fact, have jurisdiction.
Why is this necessary? Because, as a report by the State Auditor showed, the MCAD routinely investigates cases that are outside its statutory remit, which not only contributes to the agency’s four-year backlog but is unfair to the individuals who are haled in and investigated without justification. Click here for my article on the subject in the Massachusetts Bar Association’s Lawyers Journal.
Invidious discrimination is real, and there are enough cases that do fall within the MCAD’s jurisdiction without the agency having to spend its budget investigating cases that do not. The new legislation would restore some balance. If you would like a copy of the bill and a bill summary for legislators and their aides, email firstname.lastname@example.org with the words “MCAD Bill” in the subject line.
Invidious discrimination does occur, and we are fortunate to have an agency tailor-made to address it, namely the Massachusetts Commission Against Discrimination (MCAD). But the current four-year backlog of cases at the MCAD is hurting litigants on both sides, employers and employees alike. Justice delayed is justice denied, as the saying goes. And most reasonable people would agree that the MCAD should not handle cases outside its jurisdiction.
So what should we do about the problem? Check out my article in the current edition of the Massachusetts Bar Association’s Lawyers Journal by clicking here.
September 1, 2016:- Employers take note: In compliance with the Act Relative to Transgender Discrimination that Governor Baker signed into law in July, earlier today the Massachusetts Commission Against Discrimination (MCAD) filed with the Clerk of the House of Representatives its Gender Identity Guidance. Much of the document is old, a restatement of the MCAD’s 2015 Advisory, including the “best practices” e.g. “update personnel records, email systems, and other documents to reflect [an] employee’s stated name and gender identity, and ensure confidentiality of any prior documentation of an employee’s pre-transition name or gender marker.”
But the section of the Guidance regarding proof of gender identity and restrooms (Part III. D) is new. Readers will recall that the statute requires that employers allow employees and members of the public to use the restroom “consistent with their gender identity.” The Guidance states that “[r]equiring an employee to provide identification or proof of any particular medical procedure (including gender affirming surgery) in order to access gender designated facilities, may be evidence of discriminatory bias” (emphasis added).
This is important to note because an earlier part of the Guidance (III. A: Definition of Gender Identity) states that when it investigates claims of discrimination the MCAD may look at “medical records from medical or other professionals involved in the treatment or transition of the individual seeking, in the process of, or who has completed gender transition.”
In a nutshell: When an employee files a discrimination claim against the employer the MCAD can consider evidence of a medical procedure, but ahead of time — unless it wishes to invite an MCAD investigation — an employer must not ask an employee for proof of any particular medical procedure.
August 17, 2016
August 17, 2016:- If you are interested in electricity prices, today’s decision from the Supreme Judicial Court (SJC) affects you. The case saw the Conservation Law Foundation and the power company Engie Gas (formerly GDF Suez) on the same side. Neither wanted to see electricity companies able to buy pipeline capacity, as this article in the Springfield Republican explains.
The question before the SJC: May the Department of Public Utilities (DPU) approve contracts that electricity-distribution companies want to enter into with natural-gas power generators?
The answer: No. That is the abridged version of today’s 37-page decision.
The impact? Find out by looking at your electricity bills over the months and years ahead.
Note to grammarians and students of legislative drafting: You too may be interested in this decision because it discusses redenda singula singulis, AKA the rule of the last antecedent.
July 22, 2016:- When Governor Baker signs into law Senate Bill 2199, titled “An Act to Establish Pay Equity,” Massachusetts employment law will un-define (not merely re-define) an important word. Here is the text of the very first section of the bill:
Section 1 of chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out the definition of “Woman”.
So, farewell “woman,” a word that the statute used to define as “a female eighteen or over” but now does not define at all.
And farewell “sex,” too. Out with the hackneyed old phrase “no employer shall discriminate in any way in the payment of wages as between the sexes,” and in with the new: “No employer shall discriminate in any way on the basis of gender in the payment of wages.”
Pondering the replacement of sex with gender, and mulling over one of the other laws enacted this session, An Act Relative to Transgender Discrimination, which prohibits discrimination in public accommodations on the basis of gender identity, I see the potential for some mischief.
Could an employer charged with discriminating on the basis of gender raise the defense that the gender of her employees is information to which she is not privy? After all, gender is a matter of identity not physiology. I know this because I just read it in the relevant statute (clause 59, if you’re curious), which tells me in pertinent part:
“Gender identity” shall mean a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.
Got that? Gender identity means “gender-related identity, appearance or behavior.” If you are not satisfied with that definition and worry about the challenges of establishing gender identity in the courtroom, fear not; the Legislature recognized the need for greater clarity as to “when and how gender identity may be evidenced” and saw the need for guidance. In addition to having a stab at it themselves (the statute says that litigants may offer any of the following: “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity”) lawmakers delegated the task of crafting said guidance to the Attorney General and the Massachusetts Commission Against Discrimination. They are due to report to the Legislature by September 1, 2016.
In the meantime, what do we know? Well, we have replaced wage discrimination on the basis of sex (a matter of physiology) with wage discrimination on the basis of gender (a matter of identity). Of course, how a person “identifies” is not always obvious, and some think it shows rather poor manners to ask. So in the inevitable litigation, I can imagine a cross-examination of an employer along these lines:
Q. Does your employee Valery earn more than your employee Valerie for comparable work?
Q. What gender is Valery?
A. I don’t know.
Q. What about Valerie?
A. No idea.
Goodbye woman, goodbye sex. Hello protracted litigation.
July 1, 2016:- The term “mission creep” refers to a military operation that gradually expands beyond its stated objectives. A new report provides evidence of a government commission repeatedly extending its reach beyond the parameters laid out in its statutory remit, a phenomenon I hereby dub “commission creep.”
The State Auditor has published an official report on the Massachusetts Commission Against Discrimination (MCAD) and in addition to revealing the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency, and poor book-keeping) it confirms a long-harbored suspicion: The MCAD asserts jurisdiction where it has none. This matters not only to the small business owners who find themselves the target of costly investigations that drag on for years, but to all citizens who expect public servants to abide by one of the bedrock principles of constitutional government, namely the separation of powers (see Article 30 of the Massachusetts Constitution).
Despite clear statutory language confining its jurisdiction to cases filed within 300 days of the last allegedly discriminatory act, the Commission investigates cases filed after the deadline. And it does so on a scale that suggests something more than ineptitude, no mere unfortunate series of oopsy daisy events.
So that readers may judge for themselves, here is the text of the statute (section 5 of chapter 151B of the General Laws) in words as clear and unambiguous as the English language permits:
Any complaint filed pursuant to this section must be so filed within 300 days after the alleged act of discrimination.
The word must falls into the category of words legislative drafters call mandatory, as opposed to precatory or hortatory. In the vernacular, it is hard not mushy.
Nevertheless, the State Auditor’s report (p. 11) reveals that in the three-year period of the audit (2012-2015) the MCAD processed at least 123 separate cases where it lacked subject matter jurisdiction because the applicable statute of limitations had run its course:
[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions.
I cannot tell whether the auditors independently identified the 123 cases or simply made note of the instances where the MCAD itself had determined that it lacked jurisdiction on the basis of the limitation period. If the latter, then the determination would have come at the end of the MCAD’s investigative phase, the point at which the Commission issues a Lack of Probable Cause (LOPC) finding. On average that point now arrives four years — yes, four years — after the filing of the complaint. In the meantime MCAD investigators will have required the employer to devote hours responding to questions and demands for internal documents and to attending “investigative conferences” at the agency’s offices.
Either way, this is an extraordinary finding on the part of the State Auditor. The 300-day deadline is not some off-the-cuff recommendation or flexible guideline but a statutory limitation. The Legislature decided that the deadline for filing a discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) is 300 days, and only the Legislature can amend a statute. By flouting the limitation period so often, the MCAD has arrogated to itself the power to legislate, a power the Massachusetts Constitution expressly reserves to the legislative branch.
The report bears out something I have suspected for some years, i.e. that the MCAD investigates cases where it clearly lacks jurisdiction. Because of my experience with the MCAD, after the 2014 gubernatorial election I sent the incoming Baker-Polito administration a proposal that would remedy the problem, and the associated problem of the MCAD improperly asserting jurisdiction over employers with fewer than six employees (another statutory limit on the MCAD’s jurisdiction called the “small-business exemption”). My proposal is this:
If a respondent files a motion to dismiss for lack of jurisdiction, the MCAD shall suspend its investigation until it has adjudicated the motion.
The proposal does not require action on the part of the Legislature. With a nudge from the Governor the Commissioners could make it happen via a simple amendment to the MCAD’s regulations, with proper notice and comment. Under my proposal, the MCAD would have to deal with the threshold matter of jurisdiction before putting the employer to the expense of a full-blown, years-long investigation.
I submitted this suggestion back in January 2015. In view of the State Auditor’s findings, I shall re-send it.
June 16, 2016:- It was on June 16, 1780 (236 years ago today) that the Constitution of the Commonwealth of Massachusetts was deemed and declared ratified. Its principal author, John Adams, produced an operating manual for a self-governing commonwealth of free people that combines practicality with elegance. If you have a minute or two to mark the occasion of our Constitution’s anniversary, you may wish to read the Preamble:
The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.
The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.
We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.