Recent Trends in Discrimination Litigation and Enforcement

The recently released FY 2023 Massachusetts Commission Against Discrimination (MCAD) annual report offers employers a glimpse into the trends in recent discrimination law litigation in Massachusetts. To provide a context for reviewing experience, we compare the most recent data with numbers from the past two years to make it easy to follow trends in the agency’s case docket.

The number of total claims filed in FY 2023 (July 1, 2022, through June 30, 2023) trended upward sharply compared to the first two years of the pandemic, increasing by over 250 compared to FY 2022. While still below pre-pandemic numbers, the increase in claims may be indicative of a greater number of employees returning to the workplace leading to an increase in allegedly discriminatory interactions among employees or with management. Even with the numbers trending upward, they remain below the higher number of complaints dating back to the late teens. Overall, the number of complaints filed was up over fiscal year 2022 and crested over three thousand for the first time since before the pandemic began in fiscal year 2020.

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

3,086 new complaints filed in FY2023
2,822 new complaints filed in FY2022
2,463 new complaints filed in FY2021

Although claims filed at the MCAD include public and private housing, public accommodation, and education discrimination, 78% (2,407) of the 3,086 complaints filed in the most recent fiscal year were allegations of employment discrimination.

Categories

The top 8 categories of discrimination complaints filed over the past three years were:

Top 8 Categories

*Claims may contain multiple allegations of discrimination.

Some of the key takeaways that emerge from a comparison of complaints filed over the last three years include retaliation remains the number one type of complaint at the MCAD. Disability complaints remain in second place, while complaints based on race and/or color rose dramatically by over 350 to now being the third most common complaint at the MCAD. Complaints based on sex discrimination continue to be high, up more than 200 over fiscal year 2022. On the other hand, complaints alleging national origin discrimination dropped by almost 130 from the prior annual report. Age discrimination complaints went up significantly from last year as did complaints of discrimination based on sexual orientation, breaking 100 for the first time since fiscal year 2019. While fiscal year 2022 saw a significant increase in complaints alleging religious discrimination filed at the MCAD, it appears that may have been a one-year phenomenon tied to the pandemic and objections to the vaccine on religious grounds, as the number of complaints reduced by half in fiscal year 2023.  All other complaint categories (gender identity, genetics and other, family status, arrest record, military/veteran status, marital status) were fewer than one hundred in the past three years. It is worth noting that sex discrimination includes three subcategories: sex discrimination, sexual harassment, and parental/pregnancy-related.

Going back to fiscal year 2020, retaliation has been the number one type of complaint at the MCAD in all but one of those years. This is consistent with national trends confirmed by data from the Equal Opportunity Commission (EEOC). According to the most recent EEOC numbers, at least 52% 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 the filing of a discrimination claim or an internal report of discrimination. However, it could easily be a standalone claim as well.

Remedies

The FY 2023 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, and usually not for that much money, emotional distress awards this past year typically ranged from $5,000 to $50,000 in addition to other awards issued by the MCAD. Three awards for emotional distress were particularly noteworthy, as they far exceeded the average award for this type of damages In one case an employer found liable for sexual harassment had to pay an emotional distress award of $165,000. In another case, the employee was awarded $135,000 in emotional distress damages. In another case involving retaliation and termination of employment for somebody near retirement age, the claim settled for $250,000.

In another interesting case involving an employee’s association with a disabled person, an employee married to a severely disabled spouse, alleged discrimination against him based on their marital relationship. The allegations involve disparate treatment and employment termination. The case settled for $725,000 while it was pending a review before the full commission.

Several cases (53%) required the employer to provide harassment prevention training for one or more supervisors and in other cases for the entire company.

Anyone interested in reading the short summaries of the cases highlighted in the annual report may do so by clicking here. The employment law cases begin on page 15 of the report.

The MCAD Process

It is important for an employer to understand the 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 (i.e. probable cause, PC) or be dismissed (lack of probable cause, LOPC).

In FY 2023 the MCAD determined there was a lack of probable cause in 80.4% of all cases, a slight decrease from the FY 22 percentage of 83%.

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.

Disconcertingly the MCAD’s case backlog grew by almost 400 cases last year from 1416 to 1800. The case backlog has continued to grow since 2019 when it was 285. The MCAD defines a backlog case as one that is more than 18 months old.

The number of backlog cases and the increase in total cases being filed may create more pressure on employers to settle those cases that remain before the MCAD.

On the other hand, 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 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 PC or LOPC. These tend to be cases where the claimant/employee is confident that they have 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 highly active enforcement agency that employers need to be mindful of when disciplining or terminating an employee. Ensuring proper documentation, following your own reasonable and carefully crafted policies, and ensuring consistent treatment of employees will aid in responding to any charge of discrimination.

The sheer number of claims reported to the MCAD shows that many employees or former employees are aware that there is an agency where they can file a claim in the event, they feel discriminated against and wrongfully treated in the workplace. Furthermore, the sexual harassment policy 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

With all of this said, the data show hopeful signs as well. About 80.4% of the claims were found to have a lack of probable cause (LOPC) and thus rejected by the MCAD. While that is down slightly from 83% in the fiscal year 2022, 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 internally, thereby keeping cases out of the MCAD system altogether.

The Boston and Springfield offices continue to operate though the website notes that individuals going to the office should allow more time due to building security. The Worcester office reopened at a new location in fiscal year 2024. The new address is 18 Chestnut St. Suite 520 Worcester, MA 01608, and the new phone number for the Worcester office is (508) 453-9630. We urge you to include the Worcester address on your sexual harassment policy before distributing it the next time. The New Bedford office has remained closed since 2020.

The MCAD also notes that it continues to struggle with hiring and staffing goals, likely contributing to its increasing backlog.

The MCAD report also serves as a reminder that employers should be extremely vigilant in their workplace to ensure that discriminatory behavior does not occur, and it if does, that 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 how to recognize 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 Kelly McInnis at kmcinnis@aimhrsolutions.com.

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