The Massachusetts Commission Against Discrimination is the chief civil rights agency responsible for effectuating the purpose of the Commonwealth’s equal opportunity laws; namely the Massachusetts Fair Employment Practices which prohibits discrimination in the workplace based on age; race, color, and national origin; religious creed; handicap; as well as sex, gender identity, and sexual orientation. As part of its functions, the Commission holds public hearings to determine whether an employer has violated workplace anti-discrimination laws.MCAD Charts Overview
As discussed here, a Probable Cause finding in the employee’s favor is a vital step to receiving a public hearing. At the hearing, which typically span several days, the employee presents her case and has the opportunity to call and cross-examine witnesses; introduce documentary evidence; and present expert testimony. Where the employer is found liable for discrimination, the hearing officer has authority to award damages including lost wages, front pay, emotional distress, and attorneys’ fees.
As the Commission acknowledges and cautions in its 2006 Annual Report, statistics concerning Probable Cause determinations are often analyzed given that it represents such a significant point in every case:
While the Commission believes the PC rate is useful, we do not believe that it is important as a goal we must achieve each year. Instead, the PC rate helps us understand, over the long run, whether we are properly exercising the probable cause standard and how we are performing compared to other agencies nationwide.
Below is an overview of Probable Cause statistics that we have compiled since 2007. As is evident, a bottleneck effect exists; the large majority of cases are dismissed at the Probable Cause determination phase. This highlights the importance of gathering evidence well before filing an employment discrimination claim, thoroughly researching the law, and being responsive to the investigator after a case is filed.
Since 2006, the MCAD has reported its Probable Cause finding rate using the following formula:
PC Rate = PC ÷ (PC + LOPC)
In this formula, “PC” represents the total number of Probable Cause findings and “LOPC” represents the total number of Lack of Probable Cause findings. The chart belows reflects the MCAD Probable Cause rate by year since 2007, which has ranged from a low of about 13% in 2016 to a high of about 31% in 2007. The average PC rate from 2007 through 2016 is approximately 21%.
Notably, the cases used to compile these statistics are not fully randomized due to selection bias. Employers, for example, may choose to settle the strongest cases before they are filed with the MCAD or before a Probable Cause determination is made. Moreover, as discussed here, an employee may remove her employment discrimination case to Superior Court 90 days after it has been filed with the MCAD.
While employment discrimination claims typically represent the majority of cases filed with the MCAD each year, the Commission also investigates alleged housing discrimination and public accommodations violations as well. The Probable Cause statistics above are with respect to all claims, including employment discrimination cases.Employment Discrimination: Public Hearing Statistics & Trends
The outcomes are more balanced at public hearing. From 2007 through 2015, Complainants had a total of 101 wins vs. 109 wins for Respondents. Below is a breakdown by year since 2007.
We calculated the Complainant’s win rate at public hearing using the following formula:
Complainant Win Rate = Complainant Wins ÷ (Complainant Wins + Respondent Wins)
The chart below reflects the Complainant win rate by year since 2007, which has ranged from a low of about 35% in 2011 to a high of about 58% in 2008. The average Complainant win rate from 2007 through 2015 is approximately 48%.
As the Supreme Judicial Court held in Bournewood Hospital , the MCAD has authority to award emotional distress damages pursuant to M.G.L. c. 151B, §5 which, like back pay, are a form of compensatory damages subject to statutory interest.
Later, in Stonehill College , the SJC clarified the factors that should be considered in fashioning such an award, including:
- The nature and character of the alleged harm
- The severity of the harm
- The length of time the complainant has suffered and reasonably expects to suffer
- Whether the complainant has attempted to mitigate the harm
The chart below tracks the average and median emotional distress awards from 2007 through 2015. During that period, the lowest emotional distress award was $1,000 and the highest was $300,000.
The same selection bias exists with respect to public hearing statistics. Currently, following a Probable Cause finding, the Commission requires both parties to attend a mandatory conciliation in an effort to resolve the case before the public hearing stage. Once again, the strongest cases are more likely to settle before public hearing, especially given that the employee may have sustained significant back pay damages by that point thereby increasing the employer’s exposure.
Overall, while it is interesting to evaluate the statistics above, the particular facts of each case will determine the outcome. This means that cases must be properly vetted before filing, thoroughly briefed at the MCAD, and brought to public hearing with enough evidence to satisfy burdens of proof.