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Section Review

MCAD filing fees: the end of equal access to workplace justice

Paul MerryPaul H. Merry served for two years as general counsel and chief of enforcement for the Massachusetts Commission Against Discrimination. He practices employment law in Boston as of counsel to the firm of Messing, Rudavsky and Weliky,
primarily representing primarily plaintiffs. He also teaches at Suffolk University Law School.

Even though she had only recently arrived from El Salvador and spoke little English, Esmeralda Sanchez (not her real name) knew it was wrong for her supervisor to be hanging around in the offices she was cleaning in downtown Boston, looking for chances to talk to her or brush up against her. But Esmeralda didn't know what to do about it. She was earning only $6 an hour, much of which she sent back to her aging parents at home. And neither she nor anyone in her small group of (mostly El Salvadoran) friends knew a lawyer.

But one of them had heard something about the Comission Contra Discrimination (Massachusetts Commission Against Discrimination or MCAD), and it gave her hope. Because she worked nights, she was able to find her way to the commission's offices at 1 Ashburton Place in Boston one day and meet with a commission staff member. For no charge, the staff member interviewed her and initiated an investigation that resulted in significant actions against the employer, including money damages for Esmeralda because of the distress she experienced from the unwanted sexual advances of her powerful superior.

Like Esmeralda, poor, undereducated workers have long come to MCAD when faced with workplace, housing and public accommodation discrimination.

Hmong, Russians, Nigerians and speakers of Haitian Creole, among many others, as well as African-American and Hispanic citizens, stream through the agency's doors. But this long-established avenue for redress for the state's women and minority group members will soon be substantially cut off if the announced plan to impose a filing fee of $125 is put into effect.

Many immigrants came to America believing in the founding precepts of which we as a nation are so proud, and for which our forefathers and foremothers sacrificed so much: that all humans are created equal, and are endowed with rights to life, liberty and the pursuit of happiness. We fought a bloody civil war to confirm some of those values, and have endured many other conflicts to keep them in place. And the struggle goes on against stereotypical thinking that undervalues some citizens on account of race, sex, age, religion, disability, national origin or other apparent, but irrelevant, characteristics.

When it was founded in 1946, MCAD was one of the few governmental agencies in the nation dedicated to eliminating discrimination on the basis of race, color and ethnicity. (Its federal counterpart, the Equal Employment Opportunity Commission, was not established until the 1970s.) During the more than 50 years of its existence, the commission's mandate has expanded to include religion, national origin, disability, sex, age and sexual orientation. Its commissioners have steadfastly stood up for the right of Americans outside the mainstream to be free of hostile or negative treatment on account of their status.

The commission's stand against racism is well known, and it has been the battleground against sex discrimination and harassment as well. The courts and the legislature have expanded its power by requiring that sex harassment complaints be routed through its process even though the statute expressly forbidding such harassment does not specify the agency to handle the issue.

In the disability arena, the commission has held its ground against the onslaught that has so dramatically circumscribed the laws meant to protect the disabled in the workplace. The Supreme Judicial Court has sustained the commission's policy, which expressly contradicts the federal holding, that persons with treatable disabilities such as diabetes or amputation remain entitled to the law's protections even if those disabilities are under control. Most recently, the commission moved into new ground in determining that transsexuals are entitled to protection against discrimination under the sex discrimination provisions of the statute.

Faced with unprecedented budget shortfalls, Gov. Mitt Romney earlier this year announced that filing fees would be imposed at MCAD to help defray the cost of its operation. The announcement followed news that the agency, chronically underfunded, would lose half of the funds it had previously received to pay for its operations.

The governor may also have been thinking that imposition of these fees might reduce the high volume of claims (many of them later dismissed) that are filed at MCAD. Such a reduction might, in theory, improve the efficiency of the agency, long a target of criticism for delay and ineffectiveness.

The governor's motivation is easy to understand, but this particular measure will strike a deadly blow at the core of MCAD's mission - access to workplace justice for the most vulnerable members of society. While MCAD does not provide statistics on its complainants' incomes, observation over a period of years suggests that the vast majority of them are minimum- or low-wage workers. They are without realistic recourse to other means for securing justice.

Like Esmeralda, they have families to support either here or elsewhere. They will rarely if ever have savings or other financial resources to draw upon. Their local communities, while perhaps close, are often small and limited in financial means and political influence. Like Esmeralda, they work in low-skilled positions, often for organizations not known for their enforcement of anti-harassment and discrimination policies. Like Esmeralda, the majority of them are not well educated or sophisticated about the American system of justice. All they know is that the treatment they are getting isn't right; and that they need some outside party or agency to help them try to correct it. By contrast, in the rare instances when middle- and upper-class workers suffer discrimination (most notably in connection with age), they are most often well positioned to seek private counsel and bring their cases forward with professional support, whether at MCAD or in court.

To expect this low-income constituency to produce a filing fee of more than $100 is unrealistic and unreasonable and will mean the end of their hopes of redress against arbitrary, discriminatory treatment by large, well-funded employers. The likely result will be increasing frustration and anger among a population segment on whom the economy depends, but who will no longer have an outlet for their grievances or someone to listen to their complaints and explain whether they warrant redress. One of the strongest arguments for MCAD process is that it provides this kind of hearing by at least one branch of the establishment - state government.

The importance of this function is difficult to quantify, but equally difficult to understate. The commission deserves credit for seeking to achieve - without the cost, formality and delay of the court system - fairness and justice in how workers, tenants and customers are treated. In a society many see as increasingly stratified, the access this agency provides is at least one safety valve, one forum in which the disenfranchised can be sure that someone will listen to them. And while it has long been a stepchild, abused by establishment and organized civil rights advocates alike, the actions it has taken have given new dignity and honor to its unorganized, powerless constituency.

The fiscal crisis facing state government cannot be denied, and it makes sense that all agencies should share in the pain of addressing it. But to attempt to make MCAD a revenue source, or to force it to support itself by fees, shows a basic misperception of its function and a betrayal of the promise it represents.

©2014 Massachusetts Bar Association