The recently released Fiscal Year (FY) 2024 Massachusetts Commission Against Discrimination (MCAD) annual report offers employers a glimpse into the trends in recent discrimination litigation in Massachusetts.

The total number of claims filed in FY 2024 (July 1, 2023, through June 30, 2024) trended sharply upward. The number of claims increased by more than 450 over FY 2023, jumping from 3,086 to 3,553. The increase in claims may indicate a greater number of employees returning to the workplace, leading to an increase in allegedly discriminatory interactions among employees or with management. Despite this upward trend, the numbers remain below the higher complaint volumes of the late 2010s.

Total new claims filed over the past three years:

• 3,553 in FY2024
• 3,086 in FY2023
• 2,822 in FY2022

Although claims filed at the MCAD include public and private housing, public accommodation, and education discrimination, 79% (2,814) of the 3,553 complaints filed in FY 2024 were related to employment discrimination.

Categories of Complaints

The top eight categories of discrimination complaints filed over the last three years are as follows:

Category                  2024*              2023*              2022*

• Retaliation                  1,622               1329                1,100
• Disability                     1,519               1,237                1,088
• Race/Color                 1,058               1007                   650
• Sex                                1,044                978                   740
• National origin            656                 298                   423
• Age                                 609                 462                   379
• Sexual orientation       151                 108                     88
• Religion                         138                 194                   398

(Note: Claims may contain multiple allegations of discrimination.)

Some of the key takeaways from the comparison of complaints filed over the last three years include:

• Retaliation remains the number one type of complaint filed at the MCAD by a significant amount, constituting 22.7% of all claims filed.
• Disability complaints remain in second place, while those based on race and/or color maintained third place, though with a much lower increase compared to two years ago.
• Complaints based on sex discrimination continue to be high, though the rate of growth is slowing compared to the more than 200-case increase in FY 2023.

Notable shifts include:

• Complaints alleging national origin discrimination more than doubled in FY24, bouncing up from 298 to 656.
• Age discrimination complaints continued their upward climb, increasing by almost 150 cases from last year.
• Sexual orientation complaints soared from 108 up to 151.
• While FY 2022 saw a significant increase in complaints alleging religious discrimination, this appears to have been a one-year phenomenon tied to the pandemic and objections to vaccine mandates. Complaints in this category continued their downward trend, falling by more than 50 claims in FY 2024.

All other complaint categories (gender identity, genetics and other, family status, arrest record, military/veteran status, marital status) were fewer than one 100 in the past three years. It is worth noting that sex discrimination includes three subcategories: sex discrimination, sexual harassment, and parental/pregnancy-related complaints.

Since 2020, retaliation has been the most common complaint at the MCAD in all but one year. This is consistent with national trends reported by the Equal Opportunity Commission (EEOC), which show that at least 51% of all claims filed with the EEOC included a retaliation charge.

Retaliation is often a companion claim filed in conjunction with another charge because an employer took an adverse action (e.g., demotion, transfer, termination) against an employee in response to filing a discrimination claim or an internal report. However, it may be filed as a standalone claim.

Key Remedies Highlighted in the FY2024 MCAD Report

The FY 2024 report highlights remedies (emotional distress, back pay, civil penalties, and affirmative relief such as training) imposed on employers by the MCAD.

One of the significant categories of MCAD awards is for emotional distress. Although not awarded in every case, and usually not for much money, emotional distress awards this past year ranged from $5,000 to $50,000 in addition to other monetary awards issued by the MCAD.

Three awards for emotional distress were particularly noteworthy, as they far exceeded the typical range for this type of damage:

• In one case, an employer found liable for sexual harassment was ordered to pay an emotional distress award of $115,000.
• In another case, the employee, a state trooper, was awarded $250,000 in emotional distress damages.
• In another case involving a restaurant, the award included $80,000 in emotional distress damages in a case alleging sexual harassment.

Several employers were also required to implement harassment prevention training for supervisors or entire organizations.

For case summaries, visit the MCAD annual report (employment law cases start on page 16).

MCAD Process

An employer must develop a comprehensive and carefully considered response to a 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 must determine whether the claim should be allowed to proceed (i.e., probable cause, PC) or be dismissed (lack of probable cause, LOPC).
• In FY 2024, the MCAD determined there was a lack of probable cause in 84% of all cases, an increase from the FY 23 percentage of 80.4%.
• The MCAD website indicates that an investigation typically takes 18 to 22 months before it can decide on probable cause or lack of probable cause.
• The MCAD’s backlog continued to grow, though not as sharply as last year. It went from 1800 to 1851, much less than the 400-case increase in FY 2023. The case backlog has continued to grow since 2019, when it was 285. The MCAD defines a backlog case as more than 18 months old.

The growing backlog of cases, combined with the increase in total filings, may pressure employers to settle cases that remain before the MCAD. On the other hand, a finding of no probable cause means that the claim is likely over, although claimants can file an internal MCAD appeal or proceed with a court claim.

The one caveat is that approximately 24% of all the complaints brought were voluntarily removed from the MCAD and then filed in the court system, so they never went through the entire MCAD review process to determine probable cause or no probable cause. These tend to be cases where the claimant/employee is confident that they have a strong case with a great likelihood of success and believe they may recover greater damages in a court proceeding.

What Does This Mean for Employers?

The MCAD remains a highly active enforcement agency. Ensuring proper documentation, following your own reasonable and carefully crafted policies, and providing consistent treatment of employees will aid in responding to any charge of discrimination.

The high volume of claims reported to the MCAD highlights that many employees or former employees are aware of their ability to file a claim if they believe they have been discriminated against or treated unfairly in the workplace. Furthermore, the sexual harassment policy that employers of six or more employees issue at the time of hire to new employees and annually to all employees includes information about how to file with the MCAD and the 300-day statute of limitations.

Good News for Employers

Despite the challenges, the data provide some encouraging signs for employers. The 84 percent of claims that lacked probable cause led to many being dismissed by the MCAD. This success rate likely reflects the efforts of employers with effective policies in place, consistent enforcement, and solid, credible documentation to explain their actions and decisions. For many companies, it also highlights the importance of fostering a workplace culture where employees feel comfortable raising complaints internally. Resolving issues early within the company can help prevent cases from escalating to the MCAD.

The MCAD operates offices in Boston, Worcester, and Springfield. The MCAD also notes that it struggles with hiring and staffing goals, likely contributing to its increasing backlog.

A Reminder for Employers

The MCAD report also reminds employers to remain vigilant in their workplaces to ensure that discriminatory behavior does not occur and that, if it does, they take steps to resolve it internally as quickly as possible. One of the best lines of defense is training your employees, especially your supervisors, on recognizing discrimination and what to do when they see it.

Did you know that AIM provides on-site and virtual sexual harassment and discrimination awareness and prevention training? If you are interested, please contact us at HRInfo@AIMRHSolutions.com.

If you have questions or need clarity on discrimination claims or other workplace concerns, AIM is here to help.

• For quick answers and guidance, contact the AIM HR Helpline:
  470.6277 | helpline@aimnet.org
• For more complex issues—such as conducting investigations, updating handbooks, or delivering workplace training—reach out to AIM HR Solutions:
  HRInfo@AIMHRSolutions.com | 617.488.8321
  Visit us online: AIMHRSolutions.com

AIM HR Solutions and the Associated Industries of Massachusetts are here to support your business in creating compliant, well-run workplaces. Let us know how we can assist!