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.
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.
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.
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?
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.
Springfield, Mass. :- It doesn’t happen every day, or very often at all for that matter, so this case merits a mention. An employer terminated a 64-year old, White, male employee in favor of hiring a “younger more aggressive sales person who spoke Spanish and understood Latino culture.” The older White man sued for age and ethnicity discrimination and won.
A hearing officer at the Massachusetts Commission Against Discrimination (MCAD) ordered the company to pay $11,100.00 in lost wages and $5,000.00 for emotional distress. You can read the full decision (issued January 20, 2016) here.