I. In General
Generally an attorney will begin by contacting the employer by mail to obtain your personnel file. After investigating the facts and the legal basis for your claims, your attorney will send a demand letter stating the claims at issue and the laws that have been violated. The first goal is usually to resolve the situation amicably, obtaining a fair settlement for you, without going to the Massachusetts Commission Against Discrimination (“MCAD”) or court. This is not always possible and your situation may present a “he said, she said” type problem in which case a more aggressive route may be appropriate.
If you choose to file a claim against your employer for employment discrimination, Massachusetts law requires you to first file a complaint with the MCAD. The MCAD enforces G.L. c. 151B, among others, and is a separate entity from the courts. The role of the MCAD is to protect the citizens of the Commonwealth and ensure that the discrimination laws are being followed by employers in the Commonwealth.
A claim must be filed with the MCAD within 300 days of the discriminatory act. See 804 CMR 1.10. The MCAD then conducts its own neutral investigation and decides whether or not there is probable cause for a discrimination claim. If probable cause is found, the MCAD can, after a hearing, award damages which may include back pay, front pay, emotional distress damages, attorneys’ fees, and 12% interest from the date of filing. The MCAD may also order the employer to conduct training or other affirmative relief. Unfortunately, this process is lengthy and is currently taking as long as two years for a decision.
Once 90 days have passed after the filing of a complaint, you have a right to remove the case from the MCAD to Superior Court. There it used to move faster. There are several factors to consider in weighing whether to remove. However, pay close attention to the statute of limitations. If you choose to remove your case and file in court, you must file within three years of the discriminatory act; otherwise your claim will be barred from removal from MCAD.
A settlement may occur at any time in this process, often after discovery. Your attorney will advise you whether or not to accept a settlement offer based on your specific circumstances. Some factors to consider when faced with a settlement offer are the reasonableness of the settlement (is it a fair settlement given the discrimination you suffered and the responsibility of the employer), the expense of further legal action (court fees, attorneys’ fees, expert witness costs, if needed, etc.), the delay in obtaining relief and other factors, and while no one can predict success or the amount of damages with any certainty, whether a case is strong is a determination that needs to be made and reviewed periodically.