Just before the Fourth of July holiday the state auditor
released the report of its performance audit of the Massachusetts
Commission Against Discrimination (MCAD). The report covers the two
year period 2012-2014 and it reveals the usual, garden-variety
problems that bedevil state agencies (e.g. mismanagement,
inefficiency, and poor book-keeping). For example, the first phase
of a complaint filed with the MCAD is the investigative stage and
it is supposed to last no more than 18 months. However, the report
states, "as of 2015, approximately 300 cases had spent more than
three years in the investigative phase."
Three years is a long time to wait for a simple
probable-cause/lack-of-probable-cause finding, but attorneys are
inured to this sort of thing and most will greet the revelation of
administrative tardiness with no more than a world-weary sigh. It
hardly counts as news.
But the report also reveals something more serious: The MCAD
routinely asserts jurisdiction where it has none. Despite clear
statutory language confining its jurisdiction to cases filed within
300 days of the last allegedly discriminatory act, the commission
investigates cases filed after the deadline. And it does so on a
scale that suggests something more than occasional ineptitude.
"[D]uring our audit period, MCAD accepted 123 complaints beyond
the 300-day timeframe for complainants to file their complaints.
MCAD regulations allow for this 300-day timeframe to be extended
under certain conditions, but there was no documentation in the
case files to substantiate that any of these complaints met those
conditions."
This is an extraordinary finding on the part of the state
auditor. Not a mere handful, or a couple of dozen, but more than
100 untimely cases over the course of just two years were shunted
along through the investigative process, at no small cost to the
respondents, very often small business owners with paper-thin
margins. And it seems unlikely that this was an aberration. After
all, there is no reason to think that suddenly, in the summer of
2012, the MCAD started accepting late-filed cases. To make matters
worse, the auditors did not have to dig deep to identify the
100-plus mistakes. It was apparent from the data in the
case-management system that the MCAD should not have accepted these
cases in the first place.
In addition to hurting small businesses, the MCAD's
investigation of complaints over which it has no jurisdiction hurts
constitutional norms and the rule of law. The 300-day deadline is
not some off-the-cuff recommendation or flexible guideline but a
statutory limitation. It was the Legislature that established the
cut-off point, and only the Legislature that can change it. By
flouting the limitation period so often, the MCAD has arrogated to
itself the power to legislate, a power the Massachusetts
Constitution expressly reserves to the legislative branch.
Eventually, of course, after three or four years, a respondent
charged in a late-filed complaint may well open the mail and read
with relief that the MCAD has issued a finding of
lack-of-probable-cause on jurisdictional grounds, meaning that the
case will not go forward to public hearing. No harm, no foul?
Hardly. In the intervening years, MCAD investigators will have
required that party (usually the complainant's current or former
employer) to devote hours responding to questions and demands for
internal documents and to attending "investigative conferences" at
the agency's offices.
There is a mechanism in place designed to prevent this. One of
the MCAD's regulations (804 CMR 1.13) provides that timeliness is a
threshold issue and that the agency must not investigate where it
lacks jurisdiction. But, for whatever reason, this regulation does
not prevent the MCAD from investigating cases that it should have
screened out. Relying on intake staff to flag late-filed cases and
expecting investigating officers to refrain from investigating them
simply does not work, at least not well enough to prevent more than
100 untimely cases from slipping in the door
So how can we keep the MCAD from investigating people it has no
business investigating at all? Given that the key shortcoming in
current system is its implicit assumption that agency employees
will reject untimely complaints of their own volition (an example,
perhaps, of faith-based policymaking) any effective remedy must
include some way for respondents to enforce the 300-day limitation
period.
In adjudicatory settings, e.g. courtrooms across the
commonwealth, the tried and trusted mechanism is the motion to
dismiss. True, the MCAD regulations do already provide this
mechanism (804 CMR 1.05(4)(c)). But filing the motion does not act
as a brake. The investigation may steam ahead anyway, while the
respondent waits for a ruling. If the investigating commissioner
denies the motion, the respondent's only recourse is to the full
commission, i.e., the investigating commissioner plus the other two
commissioners. Anecdotal evidence indicates that reversals are
rare.
A better and more just way to resolve jurisdictional disputes
would be as follows: (1) If a respondent files a motion to dismiss
for lack of jurisdiction, the MCAD would have to suspend its
investigation until it has adjudicated the motion; and (2) if the
motion is denied, the respondent should have the right to an
interlocutory appeal to the Superior Court.
Attorney Peter Vickery is a former member of the
Governor's Council and the State Ballot Law Commission. His
practice focuses on employment law, in particular discrimination
defense.