The recently released Massachusetts Commission Against Discrimination (MCAD) annual report for Fiscal Year 2022 offers employers a glimpse into the trends in discrimination law in Massachusetts.

The number of claims filed in FY 2022 trended upward sharply compared to the first two years of the pandemic, increasing by more than 350 compared to FY 2021. While still less than pre-pandemic numbers, the increase in claims may be indicative of employees returning to the workplace with a corresponding increase in allegedly discriminatory interactions.

The total claims filed for the last three years are listed below:

• 2,822 new complaints filed in FY2022
• 2,463 new complaints filed in FY2021
• 2,278 new complaints filed in FY2020.

Although claims filed at the MCAD include housing, public accommodation, and education discrimination, 78% (2,208) of all of the complaints filed were allegations of employment discrimination.

Categories

The top six categories of discrimination complaints filed over the past two years were:

Category                                2022                                2021    

Retaliation                          1,100                           1,060
Disability                            1,088                           1,088
Sex                                    740                              760
Race/Color                         650                              616
National origin                    423                              434
Age                                   379                              473
Religion                             398                              48

All of the other complaint categories were fewer than 100 in both years. It is worth noting that sex discrimination includes three subcategories; sex discrimination, sexual harassment and parental/pregnancy-related.

Some claims may contain multiple allegations of discrimination.

Several interesting developments emerge based on the FY 2022 annual report. The first is the dramatic increase in religious discrimination claims.  This was possibly triggered by pandemic-based religious discrimination claims related to vaccine mandates by employers.

The second involves national origin claims. While the claim numbers went down, national origin moved up the list from sixth last year to fifth this year, trading places with age discrimination claims. And finally, after being displaced by disability complaints in FY 2021, retaliation has returned to its number-one place. This is consistent with national trends shown by the Equal Employment Opportunity Commission (EEOC). According to the most recent EEOC numbers, approximately 56% of all claims include 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 the filing of a discrimination claim or an internal report of discrimination.

Remedies

The FY 2022 report also highlights different 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, emotional distress awards this past year typically ranged from $5,000 to $50,000 beyond any other award issued by the MCAD.

One case included an allegation of individual supervisory in addition to company liability, but the MCAD dismissed the individual component of the claim. Several cases required the employer to provide harassment prevention training for one or more supervisors and in other cases for the entire company.

MCAD provides summaries of the cases highlighted in the annual report.

The employment law cases begin on page 15 of the report.

The MCAD Process

It is important for an employer to understand the MCAD process to 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 (probable cause, PC) or be dismissed (lack of probable cause, LOPC).
• In FY 2022 the MCAD determined there was a lack of probable cause in 83% of all cases.
• The MCAD posts on its website that an investigation typically takes 18 to 22 months before it can make a determination of probable cause or lack of probable cause. This is good news for employers since a finding of no probable cause means that the claim may end, although claimants can file an internal MCAD appeal or proceed with a court.

The one caveat is that approximately 12% of all the complaints brought were removed from the MCAD and then filed in the court system so they never went through the entire MCAD review process to determine PC or LOPC. These tend to be cases in which the claimant/employee is confident there is a strong case with a great likelihood of success, and with the belief they may be able to recover greater damages in a court proceeding.

What does this all mean for employers?

The MCAD remains a active enforcement agency of which employers need to be mindful when disciplining or terminating an employee. Ensuring proper documentation, following your own reasonable policies, and ensuring consistent treatment will aid in responding to a charge of discrimination.

The sheer number of claims reported to the MCAD shows that many employees are aware that there is an agency where they can file a claim in the event they feel wronged. Furthermore, the sexual harassment policy employers’ issue at the time of hire to new employees and annually to all employees contains information about how to file with the MCAD and the 300-day statute of limitations.

Good news for Employers

With all of this said, the data show hopeful signs as well.  About 83% of the claims filed were rejected by the MCAD. That success is directly attributable to employers having effective policies in place, enforcing the policies, and having solid credible documentation to explain their actions and decisions.

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 MCAD report also serves as a reminder that employers should be vigilant in their workplaces to ensure that discriminatory behavior does not occur, and it if does, to 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 how to recognize discrimination and what to do when they see it.

If you have questions about discrimination issues or other HR and compliance issues, please contact the AIM Hotline at 1-800-470-6277.

Did you know that AIM provides on-site sexual harassment and discrimination awareness and prevention training? If you are interested, please contact Kelly McInnis at kmcinnis@aimhrsolutions.com.

Please note that the MCAD states on its website that the Boston and Springfield offices will be opened to offer limited walk-in services as of November 1, 2022. The Worcester office is currently closed while the MCAD searches for another location. The New Bedford office has been closed since 2020.

The MCAD also notes in its most recent annual report that is going through significant staffing changes with many people leaving the organization and others being newly hired.