New MCAD regulations facing pushback from bar

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Members of the employment bar and civil rights leaders are urging the Massachusetts Commission Against Discrimination to scrap significant proposed revisions to its procedural regulations, which they say veer the agency off the important course the Legislature set for it 80 years ago.

The draft regulations, 801 CMR 1.00, were published on Dec. 3, and an initial 60-day public comment period closed on Jan. 30. MCAD also hosted three public hearings on the revisions in January.

The changes are part of “an unprecedented effort over the last two years to earnestly confront the decades of criticism [MCAD] has faced for lengthy investigations, a growing backlog, and inefficient, inadequate case processing,” MCAD press secretary Justine LaVoye explained.

A linchpin of the revisions is a “modern, comprehensive case management system” that will allow pro se complainants and represented parties alike to file complaints online. The system, accessed through an online portal, will give victims of discrimination “unprecedented access” to MCAD as their complaints are processed, according to LaVoye.

But critics of the revisions believe MCAD is being too heavy-handed in seeking to funnel almost every complainant to the online portal as their initial touchpoint with the agency. That change would fall disproportionately on self-represented complainants, who have historically benefited from the option to file by mail or by walking into the agency’s Boston, Springfield or Worcester offices, the critics say.

LaVoye said that MCAD has so far received both positive and negative feedback on the draft regulations and is now welcoming additional comments, having voted at its Feb. 17 public meeting to extend the deadline to March 31. Because the process of receiving and vetting the comments is ongoing, LaVoye said further comment on the draft regulations is “premature.”

“The agency recognizes that with great changes come heightened anxieties and concerns, but it remains confident that once the regulatory process concludes, its historic effort to modernize the agency in service to its mission and to victims of discrimination will shorten investigations while improving their quality, dramatically improving the access to its services for all who need them,” LaVoye said.

The message is that mailed complaints will be de-prioritized; the reference to delay feels like a threat.

— Robert S. Mantell, Somerville

Others are less sure, noting the stakes are particularly high at the moment.

A memorandum submitted by a coalition of individual attorneys and organizations, including GLAD Law, the ACLU of Massachusetts, and the Disability Law Center, and authored by Newton attorney Anne L. Josephson, notes that the proposed changes are coming “at a time when the effort to combat discriminatory practices is under attack at the federal level.”

Massachusetts should want to continue to buck that trend, the coalition argues.

Only one way in

If the proposed revisions take effect, complainants could still file by mail, “although such filings are strongly discouraged and may cause delay in the processing of the complaint,” the new procedural regulation reads.

Likewise, a complainant could still go to an MCAD office during regular business hours, but they would enter their information into the MCAD case portal.

According to its most recent annual report, walk-in intakes accounted for more than a third — 36 percent — of new complaints filed in FY25. Another 26 percent resulted from “virtual intakes” scheduled through MCAD’s website and conducted via Zoom, while 7 percent were submitted through the mail.

In general, pro se complainants file by mail because they must, Somerville employment attorney Robert S. Mantell notes in comments submitted to MCAD on behalf of the Massachusetts Employment Lawyers Association and Greater Boston Legal Services.

You [as MCAD] don’t have any obligation to try to understand things that are not expressed in a legally articulate manner. Maybe you will be a good complaint processor, and maybe you’ll make an effort to do that. But nothing in these regulations requires you to.

— Ellen J. Messing, Newton

“The message from this proposed regulation is that mailed complaints will be de-prioritized; the reference to delay feels like a threat,” he writes.

In turn, that threat could discourage certain people from filing at all, Mantell adds.

While LaVoye stressed that MCAD staff would “assist” walk-ins with inputting complaints into the online portal, Mantell calls the elimination of a more thorough walk-in intake process an “absolute tragedy,” especially for the underserved, those with limited English proficiency, and those with limited technological skills or accessibility.

“The idea that all pro se, unsophisticated or less articulate complainants could identify all potential statutory claims, the names and contact information of all appropriate respondents, describe supporting evidence for each claim, along with witnesses, and enter all this in a web portal, is fanciful,” he writes.

Newton attorney Ellen J. Messing noted that she has spent “a certain amount of my life sitting in the waiting room at the MCAD office in Boston” and has seen people come in whose first language is not English. The in-person intake process has been invaluable to them, she said.

“I just can’t imagine what would happen to those people” if forced to use the portal, said Messing, the lead author of comments submitted on behalf of Lawyers for Civil Rights and its “concerned community partners.”

‘Double whammy’

The insistence on using the portal might be less of an issue were it not for the fact that the proposed regulations also drastically expand MCAD’s ability to dismiss a complaint without an investigation, critics say.

New grounds for dismissal embodied in the proposed regulations include that the allegations are “vague,” that allegations of monetary and non-monetary harm appear “de minimis, moot or mitigated,” that there is a “tenuous nexus” between protected class and the allegedly discriminatory conduct, or that the “public interest requires focusing Commission resources on complaints with greater impact on the mission to eradicate discrimination.”

“It’s a double whammy because, in the one sense, they don’t want the mail-in complaints, they don’t want the in-person complaints, and on the other hand, they greatly expand the ability to dismiss cases in summary fashion, meaning even before they serve the complaint on the employer,” Mantell said.

The new criteria for dismissals are either bound up with the merits of the complaints and deserve an investigation before a commissioner makes a decision or they are judgments about how MCAD might best allocate its resources, said Boston attorney David A. Russcol, a contributor to the MELA and GBLS comments.

“The solution to a resource allocation issue is for the Legislature to fully fund the commission and give it the resources it needs,” not to “toss potentially valid complaints out the window,” he said.

The Lawyers for Civil Rights comments assert that allowing dismissals of complaints on the new grounds “would be flatly contrary to the authorizing statute and, therefore, if adopted, would be invalid,” citing the 1988 Supreme Judicial Court decision Electronics Corp. of America v. Commr. of Revenue.

Lawyers for Civil Rights goes on to note that, in an apparent attempt to navigate around the issue, MCAD has dubbed its new screening mechanism a “preliminary investigation.” But under Chapter 151B, an “investigation” entails a factual inquiry, “not an on-the-papers assessment before the facts have been developed,” according to LCR.

LaVoye said that the “more robust” preliminary investigation process envisioned by the proposed regulations will give MCAD staff time to examine the complaint and allegations more fully. Staff can use that time to interview the complainant, request additional information, identify the correct parties and comparators, and discuss the complaint as a team composed of attorneys, senior investigators, administrative staff and managers, she said.

“The goal is not to limit investigations but to ensure that meaningful cases do not fall by the wayside, and instead receive a thorough, timely investigation and an informed finding,” she said.

But nothing in the proposed regulations obligates MCAD to speak to or otherwise involve the complainant in the determination, Messing noted.

“You [as MCAD] don’t have any obligation to try to understand things that are not expressed in a legally articulate manner,” Messing said. “Maybe you will be a good complaint processor, and maybe you’ll make an effort to do that. But nothing in these regulations requires you to. You can look at a complaint and say, ‘I don’t know what the heck these people are talking about, so I’ll just put this one in the “vague” pile. I’ll just put this one in the “tenuous connection” pile.’”

It is inappropriate to try to import a “de minimis” exception into discrimination law, Lawyers for Civil Rights argues.

“Chapter 151B does not allow an employer to discriminate against, or racially harass, a worker, ‘just a little,’” it notes.

The proposed regulations are also unclear about what it means for harm to be “moot” or “mitigated,” LCR adds.

“By diluting its own standards — in contravention of the governing statute — MCAD sends a dangerous message: discrimination is permissible so long as the harm can be obscured as ‘vague,’ ‘de minimis,’ or papered over through superficial ‘mitigation,’” its comments read. “This framework does not deter discrimination; it invites it.”