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.
Peter Vickery, Esq., 