Filing a Discrimination Claim – Massachusetts

1. What kinds of discrimination are against state law in Massachusetts?

Massachusetts law makes it illegal for an employer to discriminate on the basis of race, color, national origin, national ancestry, creed, sex, sexual orientation, age, disability (physical or mental), genetic information, and the existence of a criminal record.

In Massachusetts, courts have determined that Massachusetts law should be interpreted more broadly than federal law, so in certain types of cases, especially in the areas of disability, sexual harassment, and age discrimination, there may be more protection under state law. (See MCAD guidelines on disability, maternity leave, and sexual harassment for more information.)

Massachusetts also has a more worker-friendly rule for continuing violations in sexual harassment cases. The Massachusetts rule focuses on hopelessness of the situation while the federal rule focuses on when exactly the employee would have been able to file a hostile environment claim based on the workplace activity.

State law also makes it illegal to “aid and abet” discrimination, which permits legal action to be taken against any person (not limited to an employee of your employer) who helped cause the discrimination to happen. Unlike federal law, you can sue your supervisor or coworker who discriminated against you, and not just the company or organization that is your employer. Massachusetts state law makes employers strictly liable for what their supervisors do, so if you prove a case against a supervisor then the employer is automatically liable. Federal law does not allow this. However, with a co-worker who is not a supervisor (for example, in a hostile work environment harassment case), the employer has to have known about it and refused to do anything before they are liable.

2. How do I file a discrimination claim in Massachusetts?

In Massachusetts, it is possible to file a discrimination claim either with the state administrative agency, the Massachusetts Commission Against Discrimination (MCAD) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.

The Massachusetts anti-discrimination statute covers some smaller employers not covered by federal law. Therefore, if your workplace has between 6 and 14 employees, you should file with the MCAD, as the EEOC enforces federal law, which covers only employers with 15 or more employees. If your workplace has 15 or more employees, you may file with either agency; however, some attorneys recommend that you file with the MCAD first for all types of discrimination claims.

To file a claim with the MCAD, contact the closest office below. More information about filing a claim with MCAD can be found at http://www.mass.gov/mcad/.

Boston One Ashburton Place Rm. 601 Boston, MA 02108-1518 Phone: (617) 994-6000Springfield 436 Dwight Street Rm. 220 Springfield, MA 01103 Phone: (413) 739-2145

Worcester Worcester City Hall 455 Main St. Room 100 Worcester, MA 01608 Phone: (508) 799-8010New Bedford 800 Purchase St. Room 501 New Bedford, MA 02740 Phone: (508) 990-2390

To file a claim with the EEOC, contact your local EEOC office below. More information about filing a claim with the EEOC can be found at http://www.eeoc.gov/facts/howtofil.html.

EEOC — Boston Area Office John F. Kennedy Federal Building Government Center 4th Floor, Room 475 Boston, MA 02203 Phone: (617) 565-3200 TTY: (617) 565-3204

3. What are my time deadlines?

Do not delay in contacting the MCAD or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. To preserve your claim under state law, you must file with the MCAD (or cross-file with the EEOC) within 300 days of the date you believe you were discriminated against. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. (You cannot preserve your state claim by filing with the EEOC if over 180 days has passed; you can then proceed only with your federal claim). However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

4. How can I or my attorney pursue a claim in court in Massachusetts?

If your case is successfully resolved by the MCAD or EEOC, it may not be necessary to hire an attorney or file a lawsuit (to resolve your case, you probably will be required as to sign a release of your legal claims). If your case is not resolved by the MCAD or EEOC, and you may want to continue to pursue the matter, you will need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and the EEOC dismisses the charge. This process is called “exhaustion” of your administrative remedy. Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the MCAD.

Because Massachusetts law does not limit or cap the damages recoverable for a discrimination claim, many Massachusetts attorneys choose to file employment discrimination cases in state court under state law.

Once the EEOC issues the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161) only then can you file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.) After your case has been pending with the MCAD for 90 days, then you may request a similar “right-to-sue” letter from MCAD to proceed with your state claim. A lawsuit based on your state discrimination claim must be filed at least 30 days after MCAD dismisses your administrative claim and within 3 years of the date you believe you were discriminated against. These deadlines are called the “statute of limitations.” If you have received one of these agency dismissal letters, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.

© 2015 Workplace Fairness