MCAD Proposes Significant Changes To Procedural Regulations
Earlier this year, the Massachusetts Commission Against Discrimination (“MCAD”) published proposed new regulations that include significant changes to the MCAD’s current regulations, which were promulgated in 1999.
In amending its regulations, the MCAD’s stated intent is to harmonize them with existing agency processes and procedures, which have not always been consistent with the current regulations. Attorneys and other parties who regularly appear before the MCAD are familiar with these actual processes and procedures, but they are not always evident to new practitioners.
Thus, as the MCAD stated in a press release, its chief goal was “to develop procedural regulations which accurately reflect the agency’s practices and procedures and which are intended to be more easily comprehended by parties and practitioners appearing before the agency.”
Some of the most significant changes that the new regulations would bring are highlighted below.
The MCAD has long allowed and, indeed, has welcomed written rebuttals from complainants in response to employers’ position statements. Up to now, however, the procedures and timeframes for rebuttals have not been formalized. The proposed regulations do so, providing that a rebuttal is due 21 days following service of a position statement or the MCAD’s request for a rebuttal.
In some cases, parties to MCAD charges are given an opportunity to conduct discovery during the pre-determination stage (i.e., before the MCAD has decided whether the evidence is sufficient to permit a charge to move forward to a public hearing). Under the proposed regulations, after completing pre-determination discovery, the parties would be required to file memoranda with the MCAD stating their positions as to how the facts gleaned in discovery support or discredit the complainant’s allegations of discrimination. These memoranda would be required to be filed within 30 days of the close of discovery.
Stays Of Investigations
Management-side practitioners have long argued that MCAD proceedings should be stayed while an employer’s motion to dismiss a charge for lack of jurisdiction is pending. On this topic, the proposed MCAD regulations would give the investigating officer the option of staying an investigation on the merits pending a ruling on a motion to dismiss.
Perhaps taking a cue from recent developments in Massachusetts Superior Court practice, the MCAD has proposed that the current requirement that parties confer with one another before filing discovery motions be expanded beyond that context. Under the MCAD’s proposed regulations, the requirement to confer would be applicable to all motions, with the exception of certain specifically exempted types (e.g., emergency motions).
Motions For Reconsideration
The proposed new regulations expand the timeframe for a respondent to file a motion for reconsideration of an MCAD probable-cause finding. Under the existing MCAD regulations, a respondent has 30 days following a probable-cause finding to file such a motion. By contrast, under the proposed regulations, a respondent would be permitted to file a motion for reconsideration at any time prior to the certification conference, or within 45 days following issuance of a certification of public hearing. This proposed change is significant, as it would give respondents much more time to decide whether to move for reconsideration of a probable-cause finding.
Under the MCAD’s current regulations, an attorney may withdraw his or her appearance in a matter at any time prior to certification of the case for public hearing. The proposed MCAD regulations would place greater limits upon this, requiring that if successor counsel has not appeared, an attorney seek leave to withdraw from the MCAD’s General Counsel.
Public Access To Charges
Under the proposed regulations, public access to charges of discrimination filed with the MCAD would be provided only after the agency has issued a determination as to probable cause. Currently, public access to charges is available upon filing.
Service By E-Mail
Finally, the proposed new regulations would allow the MCAD to serve notices to parties by e-mail, as well as by regular mail or hand delivery.
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Following a public comment period, it is expected that the MCAD will issue a final version of the new regulations, which will likely take effect later this year.
If you have any questions about the proposed new regulations or any other aspect of MCAD practice, please feel free to contact us. Our experienced employment attorneys handle numerous charges before the MCAD each year, and we would be happy to help.