By Deidre Hosler
The Massachusetts Commission Against Discrimination (MCAD) published a complete rewrite of its procedural regulations on January 24, 2020, but had less than two months to engage in outreach and education regarding the new regulations when the COVID-19 pandemic struck in March 2020. This article provides guidance on the revised post-probable cause* process for experienced and new practitioners and highlights the Commission’s overriding mission to serve the public interest.
The MCAD’s Clerk’s Office is central to the post-probable cause process
The Clerk’s Office is at the heart of the post-probable cause process and is exclusively tasked with managing all post-probable cause motion practice and case management. This is different from practice during an investigation, when the point of contact is almost always the assigned Investigator. Accordingly, every post-probable cause motion must be filed with the Clerk’s Office, without exception. Conversely, pre-determination motions should not be filed with the Clerk’s Office. See 804 CMR §§ 1.13(9)(c) and (d).
Similarly, all communications to the MCAD on any post-determination matter (e.g., not just post-probable cause cases but also all closed cases) should be directed to the Clerk’s Office. It always suffices to direct filings or communication to the attention of the Clerk of the Commission, but litigants may direct filings and communications to either the ADR Administrative Assistant (Conciliations Clerk), Appeals Clerk, or the Hearings Clerk if the matter pertains to those parts of the process.
The Clerk’s Office will reject non-compliant motions and require a corrected motion before submitting the motion to the decision-maker. For example, practitioners should be aware that the regulations now require parties represented by counsel to confer before filing any motion, and to submit a certificate affirming compliance with the requirement to confer. See 804 CMR § 1.13(4) (2020), as subject to exemptions in 804 CMR § 1.13(9). Should a moving party fail to confer or provide a certificate of conferral, the Clerk’s Office will reject the motion, and request a corrected motion before seeking a ruling on the motion.
Special issues with appearances by counsel entered by the Clerk’s Office
An attorney appearing on behalf of any party post-probable cause must be admitted to practice in Massachusetts or be admitted pro hac vice. See 804 CMR § 1.15(10). As a practical measure, the Commission will allow an out-of-state attorney to appear as a party’s duly authorized representative (DAR) during the investigation. However, once a probable cause determination issues, an out-of-state attorney DAR must be admitted pro hac vice at the MCAD to continue representing their client at the agency.
Attorneys appearing on behalf of their clients at the MCAD may only enter a general appearance. The Commission requires formal withdrawal of all appearances, but it freely allows an attorney for any party to withdraw as of right, with or without successor counsel, up to the conciliation conference (i.e., the MCAD proceeding mandated by G.L. c. 151B, § 5, requiring the MCAD to “immediately endeavor to eliminate the unlawful practice”). See 804 CMR § 1.15(7)(a) (prior to a conciliation conference an attorney may withdraw without leave of the Commission by filing a notice of withdrawal together with proof of service on their client and all other parties). Once a conciliation conference is initiated, an attorney must seek leave of the Commission to withdraw their appearance if there is no successor counsel. 804 CMR § 1.15(7)(b). The MCAD does not have rules for limited assistance representation and court rules on the subject do not apply to the MCAD.
New certification process managed by the Clerk’s Office via use of the JCQ
Discovery orders issued after an unsuccessful conciliation contain a deadline for the service of all discovery, not the completion of all discovery. 804 CMR § 1.10(2). As of November 2021, the Clerk of the Commission’s practice is to send a Joint Certification Questionnaire (JCQ) to counsel for the parties in every active case that is 15 months past its conciliation date. Prior to the 15-month mark, practitioners are encouraged to reach out to the Clerk of the Commission to either request a JCQ if discovery has been completed, inform the Clerk of an expected discovery completion date, or jointly move to extend discovery. In response, the Commission may extend deadlines for service or completion of discovery.
The JCQ serves several other important purposes, and practitioners are advised to consider it carefully and return it to the Clerk on time. It enables parties to advise the Commission if there is disagreement about the identity of the parties or the claims or issues to be certified to public hearing. Depending on the parties’ responses, the Clerk of the Commission may schedule a certification conference to clarify what claims or issues will be certified to public hearing, among other things. See 804 CMR § 1.11(3) (detailing requirements of certification memoranda to be filed in advance of a certification conference).
If held, the certification conference is the final opportunity for a respondent to argue that certifying the case to public hearing is not in the public interest or that the probable cause finding should be reconsidered. See 804 CMR § 1.08(4)(a)(1) (motions for reconsideration of probable cause determination may be filed at any time prior to a certification conference or within 45 days of certification to public hearing if no certification conference is held). Counsel should note that any motion for reconsideration of a probable cause determination based on the absence of a genuine issue of material fact must be filed after discovery is complete and, although disfavored, cases may be certified to public hearing before discovery is complete. Accordingly, counsel for respondents should consider that a certification conference held before discovery is complete will preclude the filing of such motion for reconsideration.
Lastly, the JCQ allows the parties to jointly request mediation, which will be considered by the MCAD’s Alternative Dispute Resolution (ADR) Unit. The MCAD offers mediation at its discretion (see 804 CMR § 1.06(1)), and mediation will not automatically be scheduled by request of the parties in the JCQ. Parties jointly requesting mediation in the JCQ (or otherwise, post-probable cause) should realistically consider whether mediation is likely to result in resolution of the case and should be prepared to explain to the ADR Unit why granting the request for mediation is in the public interest.
The MCAD disfavors certain settlement terms as a matter of public policy because its paramount concern is the public interest
When participating in an MCAD mediation or conciliation, MCAD mediators and conciliators are designees of the Investigating Commissioner (if not the Investigating Commissioner themselves), and the Investigating Commissioner’s paramount concern with any MCAD complaint is the public interest. See 804 CMR § 1.06(a), (b), and (d). MCAD mediators and conciliators are otherwise neutrals, and parties should rest assured that information submitted during a conciliation cannot be disclosed in any judicial or administrative proceeding, including a public hearing, unless it is otherwise discoverable. See 804 CMR §§ 1.06(1)(c) and 1.09(8).
Given that the public interest is of paramount concern in any mediation or conciliation, the MCAD disfavors the following settlement terms as a matter of public policy:
- Liquidated damages clauses.
- Non-disclosure clauses in sexual harassment cases.
- No re-application / rehire clauses.
- General releases.
Conciliation agreements can be made subject to the approval of the Investigating Commissioner. See 804 CMR § 1.09(10). The MCAD retains the authority to pursue a complaint in the public interest regardless of whether the parties have settled their private interests. See, e.g., Joule, Inc. v. Simmons, 459 Mass. 88, 95 (2011) (MCAD not bound by arbitration agreements between respondents and complainants, and retains authority to investigate, prosecute and adjudicate complaints of discrimination in the public interest); 804 CMR § 1.09(10) (conciliation agreements are between the respondent and the complainant, not the MCAD). The Investigating Commissioner may also administratively dismiss a complaint if a complainant fails to accept a reasonable settlement offer. See 804 CMR § 1.09(11).
For all these reasons, complainant’s counsel should consider their duty to represent the public interest post-probable cause when negotiating a settlement (see 804 CMR § 1.15(5) and (6)) and counsel should, therefore, consider seeking provisions in the public interest, which are detailed in a non-exhaustive list in 804 CMR § 1.09(5).
Guidance regarding public hearings
An MCAD public hearing is less formal than a trial largely because the MCAD is not bound by the rules of evidence (although it is bound by the rules of privilege, under 804 CMR § 1.12(13)). Practitioners should understand that public hearings are de novo proceedings, separate and apart from the investigative and discovery process, and that the evidence in a public hearing is only that which the parties submit to the Hearing Commissioner or Officer, as they allow in their discretion.
Practitioners should know their burdens and prepare their witnesses for both direct and cross examination, and present detailed evidence with respect to damages. When a complainant receives public or other benefits, the Commission applies the collateral source rule unless, in the discretion of the factfinder, countervailing circumstances would render its application unjust. See Schillace v. Enos Home Oxygen Therapy, Inc., et al., 39 MDLR 59 (2017).
The MCAD has resumed holding public hearings in-person, with public livestreaming of the proceeding. For any remote public hearing, practitioners should review the MCAD’s remote public hearing protocols and virtual proceedings guidance from the Clerk’s Office. See 804 CMR § 1.12(4).
Important process changes regarding the finality of Full Commission decisions
Counsel for complainants and the Commission are entitled to recover attorney’s fees when they prevail on one or more claims at public hearing or at the Full Commission. The revised regulations spell out when fees must be requested (within 15 days of receipt of a decision), and the process for deciding fee petitions. 804 CMR § 1.12(19); 804 CMR § 1.23(12).
Because the final order by the Full Commission now addresses both an underlying appeal and a petition for fees, if any, the Commission makes time for a complainant who has prevailed at the Full Commission to petition for fees before issuing the final order. If a complainant who prevails at the Full Commission does not file a petition for attorney’s fees within 15 days, the Commission will issue a Notice of Entry of Final Decision and Order indicating that the decision on the underlying appeal is now final. Alternatively, if a complainant who prevails at the Full Commission does timely petition for attorneys’ fees, the Commission issues a Notice of Entry of Final Decision and Order with the decision on the fees petition, indicating that the fees decision, together with the Full Commission decision, constituted the final order of the Commission for purpose of judicial review under M.G.L. c. 30A and M.G.L. c. 151B, § 6.
The Lightning Round
The following is a short list of additional best practices and specific requirements when practicing before the MCAD:
- Although not required by 804 CMR § 1.10, objections to written discovery must be detailed and specific, general objections do not suffice.
- Motions to compel written discovery responses and oppositions thereto should reproduce the document request or interrogatory and response at issue.
- The Investigating Commissioner may require the filing of any deposition transcript (804 CMR § 1.10(6)(f)).
- Pay close attention to motion practice requirements in 804 CMR § 1.13, specifically:
- If one or more parties is not pro se, all post-probable cause motions and oppositions, together with any replies or sur-replies, must be filed with the Clerk of the Commission in a package (similar to that which is required by Superior Court Rule 9A) under detailed cover letter by the moving party (804 CMR § 1.13(5)); and
- Motions (i) must contain a statement of the reasons for the motion with supporting authorities as well as a proposed order, (ii) may request a motion hearing, and (iii) should contain affidavits and other documents evidencing facts on which the motion is based (804 CMR § 1.13(1)).
- The Clerk’s Office requires a withdrawal form for every complaint withdrawn, regardless of the reason for the withdrawal. Forms are available on the MCAD’s website.
- Notify the Clerk’s Office of withdrawal to court and provide a copy of the complaint to the MCAD General Counsel (804 CMR §§ 1.04(12)(c) and 1.04(13)).
- Parties must redact all personal data identifiers (804 CMR § 1.21(4)). Non-conforming filings will be rejected by the Clerk’s Office.
- Recordings are never permitted at conciliations or mediations and are not typically allowed at any other post-probable cause proceeding except for the public hearing.
- Public hearings are either recorded by a stenographer paid for by the parties, in which case the stenographer’s transcript becomes the official record of the proceeding, or else electronically recorded by the MCAD (804 CMR § 1.12(11)).
The MCAD’s post-probable cause process is managed by the Clerk’s Office and guided by the public interest. Practitioners should follow the regulations carefully and embrace the formality built into the process, as well as the flexibility. Whenever in doubt, practitioners should contact the Clerk’s Office for guidance with respect to the post-probable cause process. Additionally, the Office of the General Counsel welcomes constructive feedback on the operation of the procedural regulations, as the MCAD continues to refine practices for their enforcement.
*Cases at the MCAD are described in the procedural regulations as either “pre-determination” or “post-determination,” meaning that the investigation of the complaint is either open or closed. See 804 CMR § 1.02 (defining both terms). Any case that receives a probable cause determination is “post-determination,” but such cases are referred to herein more specifically as “post-probable cause.” The distinction is particularly important because cases closed after a lack of probable cause determination are also “post-determination.”
Deirdre Hosler is General Counsel for the Massachusetts Commission Against Discrimination, where she provides in-house counsel to agency personnel and manages the Legal Division. Attorney Hosler has spent her legal career in public service, beginning in 2004, and she is a graduate of the University of Wisconsin-Madison and Tulane University School of Law.