MCAD Issues Probable Cause Finding in Handicap Discrimination Case

Last week, I received a Probable Cause finding from the Massachusetts Commission Against Discrimination in a case involving handicap discrimination.

The decision confirms that, where an employer requests medical documentation from an employee, the inquiry must be appropriately focused:

The MCAD Guidelines state than an employer may request medical documentation to determine the existence of a disability and identify effective accommodations. However, the guidelines also that the inquiry must be appropriately focused. In the instant case, the Respondent’s inquiries were not appropriately focused. The Respondent allowed a line supervisor to determine than an accommodation was to be denied. The Respondent then engaged in a protracted and obtuse series of inquiries by various individuals who lacked the knowledge or authority to determine what if any accommodation was needed.

The MCAD Process has multiple stages. First, a Charge of Discrimination must be filed within 300 days from the date the discrimination occurred. In response to the charges, the employer submits its Position Statement. The complainant next submits his or her Rebuttal in the final stage of the pleadings. Once all pleadings are submitted, the MCAD conducts its investigation and determines whether Probable Cause for discrimination exists.

The Probable Cause finding means that the MCAD has found sufficient evidence to support a conclusion that unlawful discrimination may have occurred. The case then proceeds to a conciliation conference where efforts at resolution between the Complainant and the
Respondent are attempted. If the parties are unable to resolve the dispute, the case goes to Public Hearing.

Massachusetts CORI Reform to Broaden MCAD’s Police Power

Massachusetts’ Criminal Offender Record Information laws should expect an overhaul in 2008. Among Governor Deval Patrick’s initiatives is a push to assist individuals with criminal records with finding jobs and preventing workplace discrimination. The Massachusetts Bar Association (MBA) has been particularly outspoken about the need for CORI reform. Current MBA President, David White, discussed the hidden job discrimination with which this group must contend in his President’s Message entitled, Criminal reforms are long overdue.

Under Governor Deval Patrick’s recent proposed Executive Order (below), the Massachusetts Commission Against Discrimination will be responsible for adopting regulations “that prohibit an employer from rejecting or discharging a qualified person with a criminal record because of the mere existence of the record.”



WHEREAS, the Commonwealth maintains over 2.8 million criminal records, which are difficult to read, and many of which contain inaccuracies, but are, nonetheless, routinely disseminated to non-criminal justice agencies;

WHEREAS, the number of non-criminal justice agencies requesting criminal record information has grown exponentially over the last decade such that in 2006 alone, 1.4 million requests were processed, and the extent of the information received by these agencies also has expanded substantially;

WHEREAS, thousands of people processed through the criminal justice system, including those found not guilty or whose charges were not prosecuted, are unable, due to the dissemination of their records, to secure employment, job training or otherwise lead productive, taxpaying and law-abiding lives;

WHEREAS, the Commonwealth has a compelling interest in reducing its recidivism and unemployment rates, currently at 43 and 4.4 percent respectively;

WHEREAS, the criminal justice system heavily impacts minority communities resulting in higher joblessness and unemployment rates that in turn exacerbate poverty (ranging from 6 to 52 percent in Boston) and reinforce cycles of criminal system involvement;

WHEREAS, the Governor’s Taskforce on CORI Reform determined that there is widespread agreement among various stakeholders, including employers, Bar Associations and social service providers, to diminish barriers impeding successful reintegration of persons with criminal histories into mainstream living;

NOW THEREFORE, I, Deval Patrick, Governor of the Commonwealth of Massachusetts, by virtue of the authority vested in me as Supreme Executive Magistrate, and Lieutenant Governor Timothy P. Murray, do hereby order as follows:

Section 1. Declaration of Policy.
It is the policy of the Commonwealth of Massachusetts to promote the full participation of law-abiding residents, who have criminal offender record information (CORI), in the labor market and in other spheres of mainstream living.

Section 3. Directives to the Massachusetts Commission Against Discrimination.

3.1 The Massachusetts Commission Against Discrimination, (MCAD) shall adopt regulations that prohibit an employer from rejecting or discharging a qualified person with a criminal record because of the mere existence of the record.

3.2 The MCAD shall adopt regulations that prohibit the use of an erroneously issued CORI in making a hiring, promotion or firing decision.

3.3 The MCAD shall adopt regulations that require an employer making an adverse decision based on a CORI to insure that one or more convictions on the report substantially relate to a position to be filled and that the decision is objectively reasonable under all the circumstances. The MCAD regulations also shall adopt the standards set forth at the Criminal History Systems Board regulation, 803 CMR 6.11, and require that employers follow the standards.

3.4 The MCAD shall adopt regulations that afford any aggrieved person with a CORI the right to avail him or herself of the agency’s complaint mechanism.

3.5 The MCAD, under its plenary powers to combat discrimination, shall ensure, through periodic investigation and monitoring, that criminal histories are not been used as proxy for unlawful race or national origin discrimination.

Equal Employment Opportunity Commission (EEOC) Settles Race Discrimination Suits Against Ford & Lockheed Martin

The U.S. Equal Employment Opportunity Commission (EEOC) recorded a significant win in 2007, securing a settlement of about $1.6 million on behalf of a class of nearly 700 African Americans nationwide who suffered race discrimination.

At issue was a written test used by Ford Motor Corp., Visteon Corp., Automotive Components Holdings, and the United Auto Workers of America (UAW) to select job candidates for Ford’s skilled trades apprenticeship program. The test had a disproportionately negative impact on African-Americans.

As part of the settlement, the EEOC was also successful in securing non-monetary relief which, among other things, placed 55 African American test takers into the apprentice program. The settlement complements an earlier suit in 2005 brought by the EEOC against both Ford and the UAW, which was settled for $8.55 million. The most recent suit covers additional job candidates not covered in the 2005 settlement.

On December 3, 2007, the EEOC issued a new Employment Testing Fact Sheet, citing the Ford case.

The EEOC has already experienced similar success in 2008, receiving a landmark settlement of $2.5 million against Lockheed Martin in a race discrimination suit. In that case, a Black aviation electrician was persistently subjected to racial epithets and threatened with bodily harm by his White co-workers during his employment with Lockheed Martin. Click here to read more about the settlement.