Audit of the Massachusetts Commission against Discrimination Overview of Audited Entity

This section describes the makeup and responsibilities of the Massachusetts Commission against Discrimination

Overview

According to the Massachusetts Commission against Discrimination’s (MCAD’s) fiscal year 2020 annual report, MCAD “is the independent state agency that enforces the anti-discrimination laws of the Commonwealth through training, mediation, investigation, prosecution and adjudication.”

MCAD’s website states,

We protect the people of Massachusetts, our workers, and our visitors from discriminatory treatment based on your membership in a protected class, such as race, color, creed, national origin, age, disability, gender, gender identity, sexual orientation, and more. We investigate Complaints of Discrimination that occur in the workplace, housing, public places, access to education, lending, and credit.

MCAD has offices in Boston, Springfield, Worcester, and New Bedford.

Budgeted revenue was $7,710,000 for fiscal year 2019 and $8,077,794 for fiscal year 2020. According to MCAD’s fiscal year 2020 report, it had 92 staff members, 36 interns, and 25 advisory board members who were active during some or all of that fiscal year. The average annual number of cases for those years was 3,000. MCAD receives federal reimbursements from the United States Department of Housing and Urban Development (HUD) and the federal Equal Employment Opportunity Commission for applicable case investigations and reviews.

Section 1 of Title 804 of the Code of Massachusetts Regulations (CMR) defines the process that MCAD uses to resolve discrimination complaints.

Filing of Complaints

Discrimination complaints are filed in writing and are signed and verified by complainants, according to 804 CMR 1.04(5). According to 804 CMR 1.04(1), complaints are filed by the following individuals or entities:

a.   A person claiming to be aggrieved by the alleged violation(s);

b.   The duly authorized representative of a person claiming to be aggrieved by the alleged violation(s);

c.    An organization whose purpose includes the elimination of the unlawful practice(s) which is the subject of the complaint and whose members include one or more persons claiming to be aggrieved by the alleged violations, provided that the injured person(s) shall be named if the complaint seeks victim-specific relief;

d.   The Attorney General or their authorized representative provided that the injured person shall be named if the complaint seeks victim-specific relief; or

e.         [MCAD].

Manner of Filing

According to 804 CMR 1.04(2), a complaint may be filed by delivery of a copy in person to any of MCAD’s offices or by mail. Additionally, a complaint may be filed at an MCAD office through the intake process and signing of the complaint. According to 804 CMR 1.04(3), 804 CMR 1.04(4)(a), and 804 CMR 1.04(4)(b), a complaint must be filed within 300 days of the alleged unlawful conduct, with exceptions for grievances filed pursuant to a collective bargaining agreement or a violation that is continual and part of an ongoing discrimination pattern.

Mediation before Investigating a Complaint

MCAD has an Alternative Dispute Resolution Unit that attempts to mediate complaints before investigations start. According to 804 CMR 1.04(4)(c), complaints may be resolved through mediation:

When an aggrieved person enters into an agreement to voluntarily mediate the alleged discriminatory acts prior to filing a complaint at [MCAD] but within the statutory filing period, the time for filing may be [extended] subject to the following conditions:

1. The parties are represented by counsel;
2. The parties execute an agreement, signed by the parties, their attorneys, and the mediator, which states the nature of the dispute, the intent to mediate the dispute, a request to [extend] the statutory filing deadline to pursue mediation, a commitment by the attorneys and mediator to conduct the mediation within 90 days, and an agreement to promptly report the outcome of the mediation to [MCAD’s] Clerk’s Office;
3. The parties submit the agreement executed pursuant to 804 CMR 1.04(4)(c)2. to the Clerk’s Office within the statutory filing deadlines provided for in 804 CMR 1.04(3);
4. [MCAD] shall [extend] the statutory filing deadline for 90 days from the date the agreement is submitted to the Clerk’s Office, or until the mediator and parties have reported that they are unable to resolve the matter through mediation, whichever date is sooner; and
5. If the parties are unable to resolve the matter through mediation the person claiming to be aggrieved by the alleged violation shall file a complaint within 21 days of reporting that the mediation was unsuccessful. The filing date shall be deemed to be the date the agreement to mediate was filed with [MCAD].

Mediation of HUD Housing Complaints

According to 804 CMR 1.06(2), HUD housing complaints may also be resolved through mediation:

[MCAD] encourages the parties to resolve HUD housing complaints through voluntary settlement prior to the issuance of an investigative disposition through mediation, subject to the following provisions:

1. The Investigating Commissioner shall seek the parties’ voluntary participation in predetermination mediation at [MCAD] within 30 days of the filing of the complaint, unless impracticable to do so.
2. Any party who declines to participate or seeks postponement of a predetermination mediation shall provide written notice to the Investigating Commissioner within 48 hours of the scheduled mediation date. Failure to provide such notice without good cause may result in sanctions against the party failing to give notice.

Content of Complaint

According to 804 CMR 1.04(6), a complaint must contain the following information:

a.   The date(s) on which the unlawful discriminatory acts occurred; or, when the acts are of a continuing nature, the period of time during which acts occurred and the specific date of the last discriminatory act;

b.   A concise statement of the alleged discriminatory acts; sufficient to enable [MCAD] to investigate the claims, and provide notice to the respondent of potential liability;

c.    If appropriate, a statement indicating that the complaint is on behalf of a proposed class based on the criteria provided in 804 CMR 1.15(4)(a).

d.   Appropriate identification of the complainant(s) and the person(s) alleged to have committed unlawful discriminatory acts, unless proceeding by use of pseudonym pursuant to 804 CMR 1.04(7); and

e.      Factual allegations sufficient to support the claim.

Investigation and Answer of Complaint

According to 804 CMR 1.05(2),

[MCAD] may undertake a preliminary review of a complaint to determine if further investigation would serve the public interest, and may dismiss a complaint at such stage.

Notice of Investigation

According to 804 CMR 1.05(3), once MCAD has decided to perform an investigation, MCAD notifies the complainant and respondent of their procedural rights and obligation to respond.

According to 804 CMR 1.05(4),

[MCAD’s] Investigating Commissioner may undertake investigation of the complaint by field visit, written or oral inquiry, review of evidence submitted, conference, or any other method deemed suitable.

Completion of Investigations

According to 804 CMR 1.05(5), investigations are to be completed according to the following timeframes:

a.   HUD Housing Complaints. The investigation of a complaint alleging discrimination in housing dual filed with HUD shall be completed in no more than 100 days after receipt of the complaint, unless it is impracticable to do so.

b.   Complaints Other than HUD Housing Complaints. The investigation of a complaint alleging discrimination in all areas within the jurisdiction of [MCAD] other than housing complaints dual filed with HUD shall be completed in no more than 18 months following receipt of the complaint, unless it is impracticable to do so.

Answers to Complaints

According to 804 CMR 1.05(8)(a), complaints are to be answered according to the following timeframes:

Each respondent shall file an answer to the complaint in the form of a position statement as follows:

1. Complaints Other than HUD Housing Complaints. The position statement shall be filed either within 21 days of receipt of the notice of authorized investigation or within 21 days of receipt of an amended complaint filed pursuant to 804 CMR 1.04(9)(d) if the amended complaint is received before the filing of the position statement. Upon written request by the respondent, and for good cause shown, [MCAD] may grant an extension in which to file the position statement not to exceed 21 days absent exceptional circumstances.
2. HUD Housing Complaints.
   1. A respondent in a housing discrimination case dual filed with HUD shall file a position statement within 14 days of receipt of the notice of authorized investigation.
   2. Due to the 100-day period in which to investigate HUD housing complaints under 804 CMR 1.05(5)(a), respondents to HUD housing complaints are strongly discouraged from requesting extensions of time in which to file position statements. Upon written request by the respondent, and for good cause shown, [MCAD] may grant an extension of not more than seven days in which to file the position statement.

Though they are not required to do so, complainants may file rebuttal statements in response to position statements from respondents, in accordance with 804 CMR 1.05(9).

Investigative Conference

According to 804 CMR 1.05(10)(a),

[MCAD] may convene an investigative conference for the purpose of obtaining evidence, identifying issues in dispute, ascertaining the positions of the parties, and exploring the possibility of settlement. Notice of the investigative conference shall be provided to all parties at least 14 days prior thereto and may identify the individuals requested to attend on behalf of a party.

Notice of Consequences

According to 8.04 CMR 1.07(1),

If a respondent fails to answer a verified complaint or otherwise fails to participate in the investigation, the Investigating Commissioner may serve upon respondent a notice of consequences. The notice of consequences shall list available sanctions for failing to answer or participate.

Conciliation

According to 804 CMR 1.09, complaints go through a process of conciliation:

1.   Conciliation Required after Determining Probable Cause. . . . In conciliating a complaint, [MCAD] shall attempt to achieve a just resolution of the complaint and to obtain assurances that the respondent shall satisfactorily remedy any violations of the rights of the aggrieved person, and take such action as shall assure the elimination of discriminatory practices, or the prevention of their occurrence in the future. . . .

10. Conciliation Agreement. A conciliation agreement shall be an agreement between the respondent and the complainant and shall be subject to the approval of [MCAD]. It may include any or all remedies available under 801 CMR 1.00. Such agreement shall be in writing, shall set forth the terms of the agreement, and shall be signed by the parties. In accordance with [Section 5 of Chapter 151B of the Massachusetts General Laws], [MCAD] may make public the terms of conciliation when the complaint has been so disposed of.

Coronavirus Aid, Relief, and Economic Security Act Funds

MCAD received $75,000 in Coronavirus Aid, Relief, and Economic Security (CARES) Act funds from HUD to hire a temporary, full-time fair-housing investigator for $60,000, develop fair-housing training and outreach materials regarding the 2019 coronavirus pandemic for $10,050, and acquire three WebEx² professional licenses and three laptops for $4,950.

On April 1, 2020, the Office of the Comptroller of the Commonwealth (CTR) issued a letter to all state agencies, including MCAD, stating that the agencies were required to notify CTR when they received CARES Act funds.

2.    WebEx is a software suite for online meetings, phone calls, and messaging.

Date published:	April 4, 2022