Retaliation Complaints Soar at MCAD

The recently released Massachusetts Commission Against Discrimination (MCAD) annual report for Fiscal Year 2016 offers employers a glimpse into the trends in discrimination law in Massachusetts.  This report shows a slight jump in the number of complaints filed compared to 2015, yet fewer than in 2014.

3,082 new complaints of discrimination in 2016
3,042  in 2015
3,127   in 2014

Although claims filed at the MCAD include housing, public accommodation, and education discrimination, 81 percent (2,505) of all of the complaints filed were allegations of employment discrimination.

While disability and race complaints remained relatively flat between 2015 and 2016, there was a sharp increase in retaliation claims.
            Category                       2016*                                  2015*                   Change
         Disability                            1,137                                  1,121                    +16  
         Race/Color                        1,041                                   1,003                    +38
         Retaliation                            942                                      798                    +144
         Sex                                       875                                      845                    +30       
         Age                                       551                                      523                    +28
         National Origin                     469                                       436                    +33
*Some claims may contain multiple allegations of discrimination.
All of the other categories saw a relatively small increase in national origin and age claims rising by 33 and 28 respectively. The growth in national-origin claims may be due to the uptick in I-9 investigations by the federal government, as national-origin discrimination is often associated with preparing I-9 forms. The increase in age claims may be attributable to the growth in the older work force across the state.

Retaliation remains the third most frequent type of claim on the list. It is often a companion claim, filed in conjunction with one of the other charges because an employer took some adverse action (i.e. demotion, transfer, termination) against an employee in response to the filing of a discrimination claim. 

The Fiscal Year 2016 report also highlights different remedies (emotional distress, back pay, front pay, civil penalties and affirmative relief) imposed on employers by the MCAD.
One of the significant categories of MCAD awards is for emotional distress. Some of the emotional distress awards this past year were in the range of $5,000 to $100,000.
Back-pay awards ranged from just under $7,000 up to $156,000.  In some cases, the MCAD also assessed civil penalties in the thousands of dollars. MCAD also awarded affirmative relief by requiring a company to train its workforce, reinstate or promote employees or monitor hiring practices.

The MCAD Process
It’s important for an employer to understand the MCAD process to develop a comprehensive response to discrimination charge(s).  Below are a few key facts to keep in mind:

When a discrimination claim is filed with the MCAD, the agency first has to determine whether or not the claim has a basis for moving forward or, in MCAD language, does the claim have “probable cause” to continue.

In FY 2016 the MCAD made determinations on 2,446 discrimination claims, finding a lack of probable cause (LOPC) in 2,130 cases, or 87 percent and probable cause (PC) in only 316 cases or 13 percent.

This is good news for employers since an LOPC finding means that the claim likely ends, though claimants may file an internal MCAD appeal. 

That success is directly attributable to companies having effective policies in place, enforcing them and having solid, credible documentation to explain why they made the decision they did. For many companies it also means doing a good job of fostering a workplace culture that encourages employees to bring their complaints early to the company for resolution, keeping cases out of the MCAD system altogether.  

The one caveat is that 21 percent of all the cases MCAD resolved were removed from the MCAD to the courts relatively early on and never went through the MCAD review process. These tend to be cases where the claimant/employee believes he/she has a far stronger case and a greater likelihood of success and may be able to recover damages.  

The MCAD report should serve as a reminder that employers should be vigilant in their workplaces to ensure that discriminatory behavior does not start, or it if does, that steps are taken to resolve it internally as quickly as possible. One of the best lines of defense is training your employees, and perhaps even more critically, your supervisors on how to recognize it and what to do when they see it.

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