The Process of Filing a Complaint under Employment Law
Hello everyone, I am back! Last time, we left of with explaining the legal process of filing a complaint at Mass Commission Against Discrimination. Today, I am going to pick it up with several legal terms. Many of you may recall the three main methods of using law to protect your rights: litigation, arbitration, and mediation. Litigation takes the most time as it requires more time to discover evidence, and it is also public. Most big cases you may have heard in the news use litigation. Arbitration and mediation are the two popular alternative dispute resolutions as they are less formal and expansive, and takes less time than litigation. They are also private, so many people and companies prefer these methods for privacy reasons. Both arbitration and mediation require a neutral third party to be involved. Within these two, mediation is even less formal than arbitration as there are usually only one mediator involved in one case and helps to facilitate and come up with a common agreement instead of making a judgement.
MCAD is the neutral third party which helps to facilitate a case and represents complainants who cannot afford an attorney. When a complainant finds himself/herself being discriminated against at work, they can come in and talk to our investigators about their experience. The investigator will record key elements of their story and make a timeline. This is very challenging for the investigators because complainants’ story are often hard to organize into a concrete timeline with trivial details and multiple names tangled in. This process is called the “intake process,” which generally takes about two hours. Complainants often ask the agency if their case is worth to file. However, MCAD is a neutral party, so we cannot provide any legal advice. The only thing we need to always remember to tell the complaints is that everyone has the right to file, but we cannot tell them the chances of whether they can get the results we want.
After the intake process, the investigators will investigate the case and make a judgement of whether discrimination has occurred. During this process, the respondent is required to send a position statement in response to complainant’s complaint, and the complainant can send a rebuttal in response to respondent’s position statement. If there is lack of evidence that proves discrimination has occurred, the case is dismissed. If there is sufficient evidence, then the case will move on to the next step: the conciliation or mediation. The commissioners at our agency serve as a mediator. The agency will set up a time for both parties to come, and the mediator will view the compensation and facilitate the negotiation between the two parties, trying to get to a middle ground when both parties agree with a certain amount of compensation. In this process, professional attorneys are often involved to represent their clients, but no side conversation is allowed between the complainant party and the respondent party. The mediator will communicate privately with the two party and offer a final mediator’s recommendation in the end if the negotiation does not move forward due to disagreement. If one party does not agree with the final recommendation, they can choose to appeal and go through the litigation process. However, very few people take this step because it is uncertain, time consuming, and expansive.
This is the general process of filing a case at MCAD. The protected categories our agency covers pretty much include everyone. There is a general misunderstanding on not being able to file a case if you identity yourself as one of the majority groups. The process is very structured and is designed to protect people’s right under employment and housing law. So, if you ever feel that you encounter discrimination at work, MCAD is the right place for you to ensure your rights get protected.