Removing an MCAD Complaint to Court
If you have filed a discrimination case with the Massachusetts Commission Against Discrimination ("MCAD"), you will have the choice after 90 days to remove it and file in court. Either the MCAD or a court has the authority to award damages including back wages, emotional distress, and sometimes punitive damages.
There are some differences, however. Below are some things you should consider in making a decision about removing your MCAD complaint. Reasons to leave a claim in MCADThere are many reasons you might choose to leave your case in MCAD. The MCAD's sole responsibility is to handle claims of discrimination and sexual harassment. This means they have lots of experience in discrimination laws.
The MCAD process is also somewhat less formal than court. You are almost always better off having a lawyer than handling your case yourself. But if you have chosen to represent yourself, the MCAD process is more user friendly and easier to manage without at attorney. The MCAD filings are not public records unless or until there is an investigative finding. If you are concerned about future employers knowing that you filed an employment discrimination claim, staying in MCAD gives you an opportunity to pursue and resolve those claims before the information becomes public. Once there is an investigative finding your complaint will be a matter of public record. If you go to a public hearing at MCAD, that too will be a public record. Reasons to remove a case from MCADThere are also many reasons you might choose to withdraw your claim from MCAD.
One reason might be timing. You have to file with MCAD within 300 days of the discriminatory act, but once you meet that deadline you have a full three years to file in court. If you had to file an MCAD complaint quickly to meet the statute of limitations, withdrawal may give you more time to develop your claims before proceeding. Another is that the discovery available in MCAD is more limited and discretionary than it is in court. In MCAD, the investigator will have discretion about whether and to what extent you can get information from your employer. In Superior or Federal Court, discovery is mandatory and broad. As the plaintiff, you usually need access to a fair amount of information from your employer to prove a discrimination or harassment claim. A third is that the MCAD process can be very slow. We have seen MCAD cases drag on longer than the three year civil statute of limitations. That means that if you wait for an investigative decision you may be outside your time limit to file in Massachusetts court. When to make a decision about removing a case from MCADThe earliest time you can remove your discrimination claim is 90 days after you file the complaint with MCAD. There are certain points in the process where people consider removing the complaint.
On the 90th day. If you have filed with MCAD only to exhaust your administrative remedies and always intended to remove the complaint, this is the time to do it. You do not need to file a motion. You can fill out a simple withdrawal form and send it to the MCAD office handling your complaint. You should receive confirmation of withdrawal within a week or two, but the withdrawal is effective immediately. After receiving your employer's position statement. Usually within the first 90 days the defendant has submitted its side of the story, called a position statement. Your response to that position statement or rebuttal typically comes due at or around the 90 day mark. This is often the point at which plaintiffs decide to remove their complaint to file in court. You have received the position statement, which means you have some insight into the employer's arguments, but you have not yet had to invest time and money in the rebuttal. After mediation. If the MCAD offers an opportunity to mediate, you may choose to stay in MCAD at least through the mediation. Unlike most mediations once you are in court, there is no charge for the mediator. This gives you a free or low cost opportunity to see if you can reach resolution early in the case. No matter what, you want to keep an eye on the three year statute of limitations for discrimination claims, and the two year statute for equal pay claims. If you have not reached resolution in MCAD by the time you are a few months short of that deadline, you should at least talk to a lawyer about removing and filing in court. |
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Meet Our Employment Lawyers
Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year. She has written a book on employment law: Rules of the Road, What You Need to Know About Employment Laws in Massachusetts, and helped thousands of clients on both the employee and employer side with severance and non compete review and negotiation, wage and hour, discrimination and retaliation disputes, workplace sexual harassment situations, and advice about employment law generally.
Rebecca Rogers: Rebecca is a 2006 graduate of Boston College Law School, and has worked with slnlaw since 2013. She previously worked as an intellectual property litigation attorney for Fish & Richardson in Boston, Massachusetts, and clerked for the Massachusetts Supreme Judicial Court. Rebecca has helped clients with wage and hour disputes, employment discrimination, harassment and retaliation claims, review and negotiation of severance and non compete agreements, and advice to both employees and employers about navigating complex employment situations.
Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna has helped clients with review and negotiation of severance and non compete agreements, wage and hour disputes, discrimination, harassment and retaliation claims, and advice to small business owners about employment law and other business matters.
Elijah Bresley: Eli is a 2014 graduate of Seton Hall Law school, and has worked with slnlaw since 2020. He previously worked for a boutique employment law firm outside of Boston, and then for the Labor and Employment department of a large Boston firm. He also spent a year clerking for the judges of the Superior Court in Hartford, Connecticut. Eli has helped clients on the employee and employer side with all varieties of employment law issues, including employment discrimination, harassment, retaliation, and wage and hour issues, litigation in MCAD and state and federal courts, and advising employers about employment policies and practices.
Sharleen Tinnin: Sharleen is a 2010 graduate of Northeastern University School of Law, and has been with slnlaw since 2023. Prior to joining slnlaw, she worked with King, Tilden, McEttrick & Brink, P.C. on complex civil litigation matters. She previously worked for the United States Department of Justice, and received an "Excellence in Justice" award in 2017. Sharleen has helped clients with wage and hour, discrimination, harassment and retaliation disputes, review and negotiation of severance agreements, and litigation in MCAD and state and federal courts on employment related issues.
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