Bret A. Cohen is an attorney with Pepe & Hazard in Boston. This article is (c)2002 Bret Cohen.
Practicing before the Massachusetts Commission Against Discrimination's Attorney Assisted Unit (AAU) should not be a mystery. Moreover, while many lawyers that represent respondents may believe that the commission's rules, regulations and policies favor complainants, they, generally speaking, do not.
Nevertheless, below follows my view of the practice before the AAU.
1. Thou Shalt Know The Law.
Employment law evolves constantly and it would be improvident for anyone to assume that he or she knows what the law is on any subject before conducting legal research. Therefore, before taking a position on an issue, know the law.
For example, do not take a position regarding the application of Mass. R. Prof. C. 4.2 (regarding ex parte contact with current and former employees of a respondent) until you have read and understand Patriarca v. Center for Living & Working, Inc., et al., SJC-08481 (November 14, 2002), and Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002).
2. Thou Shalt Know The Commission's Regulations And The Information Contained In The MCAD/AAU's Fact Sheet.
You cannot practice in the AAU without reading and understanding the commission's regulations. See 804 CMR 1.01, et seq. Remember: the devil is in the detail. For example, you must serve your request for production of documents more than 30 days before the deadline to complete discovery. Also, read the AAU/MCAD Fact Sheet that is sent to both parties once the case is assigned to the AAU. (Note that the commission recently changed the fact sheet.) If you have questions, call the AAU at 617-994-6176.
3. Thou Shalt Always Have A Plan.
At the very beginning of the case, after you have a clear understanding of the facts and the law, plot a course for your defense. This will make you more efficient and keep you focused on what really matters.
First, perform the legal research necessary to make sure that you fully understand the law that will decide the case. After understanding the law, create a list of the elements of each of the complainant's claims.
Second, understand the facts of your case by reading every single document and meeting with every single witness.
Third, focus the limited discovery that you can perform (assuming that you receive an order from the commission allowing for discovery) on the soft underbelly of the complainant's claim by determining which element of the claim you will attack based upon the law and facts as they are developing.
4. Thou Shalt Not Forget That You Are Not In Superior Court.
While it is true that the commission adopted many Superior Court rules (e.g. Rule 9A), the AAU is not the Superior Court. For example, although the attorney investigators in the AAU play a rather significant role in deciding the outcome of the matter, they are not judges. You may call the investigator for guidance if issues arise. (See AAU Fact Sheet, which states that "[q]uestions concerning discovery should be directed to your assigned Attorney Investigator.")
5. Thou Shalt Know Your Facts Before You Have Your Client Swear To Them.
Check the facts. Then double check them. Just because your client tells you that the company's workforce is comprised of more females than males, for example, does not mean that it is true. Get a list that includes the name and gender of every employee in the company to accurately determine the composition of the company's workforce before your client takes a position under oath that may not be true.
6. Thou Shalt Not Over Commit Your Client Even If You Know the Facts.
Lawyers make a living off of exaggerated positions. Do not assert in your answer (position statement) that your client has never hired a male for a particular position unless you know for certain that is the case.
7. Thou Shalt Understand That If An Event Is Not Memorialized In Writing, That Event Did Not Occur.
If you tell the commission that your client terminated a former employee because she had a history of absentee problems, you better have a paper trail documenting her absences. If no documentation exists, the commission will be much less likely to believe that the absentee problem was the legitimate non-discriminatory reason for the employee's termination.
8. Thou Shalt Never Underestimate The Power Of Statistics.
Statistics do not lie - at least in theory. Scour the factual record to determine if there are statistics that support your case. For instance, we recently defended an employer and a manager accused of sexual harassment. The complainant, who was paid on a per assignment basis, alleged that a manager demanded sex in exchange for better, more lucrative work assignments. In support of her allegation that she made less money than she did before she rejected her manager's alleged advancements, the complainant produced pay check stubs for the previous year, which did in fact establish that she made less during the period at issue. Once the statistics were dissected, however, we learned that everyone in the employee's group made less money during the same time period.
9. Thou Shalt Not Rely On Nor Forget LaVelle v. Massachusetts Commission Against Discrimination, 426 Mass. 332 (1997).
Respondents have the right to a trial by jury. See LaVelle v. Massachusetts Commission Against Discrimination. This right, at least according to the commission, is limited and, in any event, must be asserted timely or it is waived.
Nevertheless, it is fair to say that the effect of the LaVelle decision is evolving. In Kimball, Bennett, Brooslin & Pava v. MCAD, et al., for example, after the full commission affirmed a six figure award, the employer filed a petition in Superior Court as a plaintiff that sought a de novo jury trial on all claims. The Superior Court refused to allow the jury to hear the commission's findings of law and fact - an issue that the employee has appealed.
10. Thou Shalt Not Forget That The Investigator You Just Yelled At Is Your Decision-Maker.
Setting aside the fact that it is unprofessional, taking out your frustration on the attorney investigator assigned to your case will likely not further your client's ball. While not the ultimate decision-maker, the investigators make recommendations about the outcome of case. Consider the laws of human nature - your poor relationship skills probably will adversely impact the manner in which your matter is reviewed.
In short, the aggressive pursuit of your client's interests while working within the AAU's framework - defined by the commission's regulations and the MCAD/AAU Fact Sheet - will lead to result that is satisfying to both you and your clients.