Employment Discrimination FAQ
Generally, employment discrimination is unfair treatment based on an employee’s status within a protected class. Under the Massachusetts Fair Employment Practices Act (codified under M.G.L. c. 151B), protected classes include age (if at least 40 years old); race, color, and national origin; religious creed; handicap; sex; as well as gender identity and sexual orientation. In addition, M.G.L. c. 151B, §3a protects employees from sexual harassment. Under federal law, the ADEA prohibits age discrimination (if at least 40 years old) in the workplace; the ADA prohibits disability discrimination; and Title VII prohibits discrimination based on race, color, national origin; religion; sex; as well as sexual harassment. Although Title VII does not explicitly list gender identity and sexual orientation as protected classes, the EEOC and several federal court decisions, including the Supreme Court, have interpreted the statute as prohibiting such discrimination.
Under M.G.L. c. 151B, §5, you must file a Charge of Discrimination with the MCAD within 300 days of the discriminatory act. Filing with the MCAD is a prerequisite to filing in court. Exceptions to this deadline exist. For example, under 804 C.M.R. §1.10(3), the parties in a dispute may enter into a written agreement to toll the statute of limitations deadline. Strict requirements, however, must be satisfied in order for the MCAD to recognize such an agreement and extend the statute of limitations deadline. In addition, depending on the case, the continuing violations doctrine may allow a complainant to file a timely Charge of Discrimination even though the first discriminatory act occurred more than 300 days prior. Federal claims under the ADA, the ADEA, and Title VII must be filed with the EEOC within 300 days as well. The MCAD and EEOC have a “work-sharing agreement.” As such, where federal discrimination claims are presented in a Charge of Discrimination and appropriate notice is given to the MCAD, the Commission may dual file the charge with the EEOC and take the lead on investigating the allegations.
After 90 days of filing with the MCAD, you have the right to remove your case to state superior or federal court by requesting permission from the MCAD. Filing in court carries its own statute of limitations deadline. Under M.G.L. c. 151B, §9, you must file a complaint in court within three years of the discriminatory act. As with the MCAD, the continuing violations doctrine may allow a plaintiff to file a timely complaint in court even though the first discriminatory act occurred more than three years prior. The court filing deadlines for federal employment discrimination claims differ. Discrimination claims under the ADA and Title VII, for instance, must be filed within 90 days of receiving Notice-of-Right-to-Sue. The court filing deadline for the ADA differs as well. A Notice-of-Right-to-Sue for ADA claims is not required. Rather, you may file in court after 60 days have passed from the day you filed your charge, but no later than 90 days after you receive notice that the EEOC’s or the MCAD’s investigation has concluded.
At the MCAD, the employee is referred to as the Complainant and the employer as the Respondent. Your case with the MCAD starts with filing a Charge of Discrimination, at which point the case is assigned to investigator. In response, the Respondent is required to submit a Position Statement addressing the allegations. From there, the Complainant has the opportunity to submit a Rebuttal. This is known as the pleadings stage. During this stage, the Commission may order an investigative conference, in which both parties are present and during which time the hearing officer will ask questions to each side regarding their respective claims or defenses.
Thereafter, the investigator will issue a Probable Cause determination. In doing so, the investigator may request additional documents or information beyond what the pleadings contain. As reported by the Lowell Sun, each investigator may carry around 235 cases and investigations can take an average of 22 months. For this reason, it is very important to respond promptly to an investigator’s request for additional information.
If Probable Cause is found and a resolution cannot be reached, the MCAD will issue a discovery order allowing the parties to conduct discovery in the form of, among other things, interrogatories, requests for the production of documents, and depositions. Once discovery has ended, the MCAD will schedule a public hearing before a Hearing Commissioner or Hearing Officer (similar to a judge). Following the public hearing, the parties each submit post-hearing briefs. From there, the Commission issues a decision. For more information, visit the MCAD’s “A Practical Guide to the Complaint Process.”
The process in court is somewhat different. In court, the employee is referred to as the Plaintiff and the employer the Defendant. Your case in court starts with filing a Complaint. In response, the Defendant is required to submit an Answer and may also file a Motion to Dismiss the lawsuit, to which the Plaintiff may respond. One difference is that, barring dismissal, the parties each have the opportunity to conduct discovery early on. Once discovery ends, each party may file a motion for Summary Judgment, asking the judge to rule in their favor. Where summary judgment is denied, the case goes to trial.
From an evidentiary standpoint, under M.G.L. c. 30A, §11(2) and 804 C.M.R. §1.21(11), the MCAD need not observe the strict rules of evidence followed by courts. As such, a hearing commissioner has wider latitude to admit and credit evidence, even if it would be otherwise inadmissible under the rules of evidence in court.
Damages for plaintiffs who prevail in an employment discrimination case vary depending on the forum, type of employment discrimination claim, and whether the claim is brought under Massachusetts or federal law. Under Massachusetts law (M.G.L. c. 151B), victims of employment discrimination who prevail at public hearing before the Massachusetts Commission Against Discrimination can recover economic loss (both back pay and front pay), emotional distress, out-of-pocket expenses, and reasonable attorneys’ fees. In addition, under M.G.L. c. 151B, §9, the MCAD may assess a civil penalty of up to $50,000 against an employer who has been adjudged to have engaged in discriminatory practices in the past.
The remedies for a plaintiff who prevails in Superior Court under Massachusetts law are similar with the exception that, pursuant to M.G.L. c. 151B, §9, a court may also award punitive damages – the purpose of which is to punish the employer and deter discriminatory practices in the future. A caveat exists with age discrimination claims under Massachusetts law. Specifically, M.G.L. c. 151B, §9 specifies liquidated damages for age discrimination victims of at least twice and up to three times the amount of actual damages, “if the court finds that the act or practice complained of was committed with knowledge, or reason to know, that such act or practice violated” the Massachusetts Fair Employment Practices Act. As the Massachusetts Supreme Judicial Court made clear in Fontaine v. Ebtec, liquidated damages in age discrimination cases take the place of punitive damages.
Recovery for certain types of employment discrimination claims under federal law are subject to a statutory cap on damages, which creates a significant distinction with Massachusetts law. In particular, the Civil Rights Act of 1991 amended Title VII and the Americans with Disabilities Act cap, by employer size, the total amount compensatory and punitive damages that can be recovered in an employment discrimination claim. The caps carry a low of $50,000 for the smallest employer and a high of $300,000 for the largest employer. Similar to Massachusetts law, liquidated damages take the place of punitive damages for age discrimination claims under the federal Age Discrimination in Employment Act. Other distinctions between Massachusetts and federal anti-discrimination laws apply, including differences in pre- and post-judgment interest.