February 28, 2020:- New rules of procedure have taken effect at the Massachusetts Commission Against Discrimination (MCAD). One welcome addition: Rule 1.13(9)(b)(3), which allows for a stay of the investigation pending the adjudication of a motion to dismiss for lack of jurisdiction (my personal hobbyhorse). I’ll drink to that.
January 28, 2020:- The federal Department of Housing and Urban Development (HUD) has issued a new guidance document on the subject of assistance animals, a term that covers (1) service animals, and (2) support animals. Its purpose is to clarify the rights and responsibilities of housing providers and people with disabilities in the area of reasonable accommodations under the federal Fair Housing Act (FHA).
As HUD clearly states, the guidance document is just that: a guidance document, not something that expands or otherwise alters obligations under the federal Fair Housing Act.
November 19, 2019:- When the Massachusetts Commission Against Discrimination (MCAD) stopped producing documents in response to Attorney J. Whitfield Larrabee’s public records requests, Attorney Larrabee sued. The MCAD said that it had changed its policy, and that from now on it would only produce information about closed cases, not open ones. Today the Appeals Court held that it is duly promulgated regulations that govern, not a unilateral policy adopted without notice and comment.
Justice Sullivan’s opinion states that the agency’s new policy conflicts with its regulations and that it must, in accordance with the regulations, produce the documents. My favorite excerpt is the following:”A regulation controls over policy statements or guidelines that conflict with the regulation… If the MCAD wishes to consider recalibrating its policy regarding public disclosure, it must follow the amendment process.”
In case any of my students are reading this, I point out that this case provides an example of why you should read the footnotes, which are there for reading not decoration. In footnote 7 the court deals with the MCAD’s argument that public disclosure of open cases will lead to respondents retaliating against complainants: The argument does not hold water because Respondents know about the complaint from the outset when the MCAD serves them with it.
Today’s decision makes this a good day for open government and the rule of law.
P.S. November 19, 2019: I just filed my own public records request with the MCAD for pending charges filed so far this year in the commission’s Springfield office. I will keep you posted.
January 15, 2019:- The Massachusetts Commission Against Discrimination (MCAD) has published its draft procedural regulations, and I am happy to report that the draft includes a proposal of mine, or at least a version of it.
Readers may recall that back in 2017 I wrote a bill to cover situations where there is doubt that the MCAD has jurisdiction to investigate a complaint. (New MCAD Bill Filed). If a person accused of discrimination files a motion to dismiss for lack of jurisdiction, the MCAD should rule on that motion first, before launching an investigation. In the meantime, the Investigating Commissioner should stay (i.e. suspend) the investigation.
The new proposed rules give the Investigating Commissioner clear authority to issue a stay.
Generally, investigation of a complaint shall not be not stayed pending the ruling on a motion. However, where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.
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.
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.