MCAD Filing Fees: What will be the Real Cost?

Featured in the June 16, 2003 issue of Massachusetts Lawyers Weekly

By Paul H. Merry

Although she spoke little English and had only recently arrived from El Salvador, Esmeralda Sanchez (not her real name) knew it was wrong for her supervisor to be hanging around in the offices she was cleaning at night in downtown Boston, looking for chances to ask her out or rub up against her.

But Sanchez didn’t know what to do about it. Earning only minimum wage and sending much of that back to her aging parents at home, she feared losing her job. 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); and it gave her hope.

Because she worked nights, she was able to find her way to the commission at One Ashburton Place in Boston and to meet with a staff member. For no charge, the staff member interviewed her — in Spanish — and initiated an investigation that resulted in the employer being called in and participating in MCAD-sponsored mediation.

This in turn led to an agreement to enforce anti-sex-harassment policies and to compensate Sanchez on account of the insomnia and anxiety she experienced from the unwanted sexual advances of her powerful superior.

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

Haitian Creole-speaking, Hmong, Russian, African as well as African-American and Hispanic citizens, along with women, the disabled, gays and lesbians and older Caucasians, stream through the agency’s doors. But this long-established avenue to redress will soon be greatly narrowed if announced plans to impose filing fees of $125 are put into effect.

When it was founded in 1946, the MCAD was one of the few governmental agencies in the nation dedicated to eliminating discrimination on the basis of race, color, religious creed, national origin and ancestry. (Its federal counterpart, the Equal Employment Opportunity Commission, was not established until the 1970s.)

During the more than 50 years of its existence, the MCAD’s mandate has expanded to include disability, sex, age and sexual orientation. Its commissioners have steadfastly stood up for the rights of Americans outside the main stream 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 a key battleground against sex discrimination and harassment as well. The courts have expanded its power by requiring that sex harassment complaints be routed through its process even though the statute that forbids 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 MCAD’s policy (which expressly contradicts federal decisions) that persons with treatable disabilities such as diabetes or amputation remain entitled to the law’s protections even if those disabilities have been ameliorated.

And 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, the Romney administration earlier this year proposed that filing fees be imposed at the MCAD to help defray the cost of its operations. The announcement followed news that the agency, chronically underfunded, would lose a quarter or more of the funds it has received under prior state budgets.

The House of Representatives has now included MCAD fees in its version of next fiscal year’s budget. And the governor may also have been thinking that imposition of these fees might reduce the high volume of claims that are filed at MCAD (many of which are later dismissed).

Some may also have thought that by reducing the number of complaints, the efficiency of the agency, long a target of criticism for delay and ineffectiveness, might be improved.

The governor’s motivation is easy to understand, but this particular measure will strike a mortal blow at the precise purpose that gives meaning to the MCAD’s mission: access to workplace justice for the most vulnerable members of society.

While MCAD does not report on its complainants’ incomes, observation over some two years suggests the vast majority of them are minimum- or low-wage workers without realistic recourse to other means for securing justice.

Like Sanchez, 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 Sanchez, they most often work in low-skilled positions, often for organizations not known for their enforcement of anti-harassment and discrimination policies.

Like Sanchez, the majority is not well-educated or sophisticated about the American system of justice. All they know is that the way they are being treated is not right, and that they need some outside party or agency to help them try to correct it.

By contrast, in the rarer instances where middle- and upper-class workers suffer age, disability, sex or other discrimination, they are often well positioned to seek private counsel and bring their cases forward with experienced professional support whether at the MCAD or in court.

To expect this constituency to produce a filing fee of more than $100 is unrealistic and unreasonable and will in the largest majority of cases mean the end of their hopes of redress against arbitrary, discriminatory treatment by large, better 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 the MCAD process is that it provides this kind of hearing by at least one branch of the establishment — state government — and an explanation of how the law views their experience.

The importance of this function is difficult to quantify, but also hard to understate. The MCAD deserves credit for seeking, without the cost, formality and sometimes delay of the court system, fairness and justice in how workers and tenants and sometimes retail customers are treated.

In a society many see as increasingly stratified, the access this agency provides is at least one safety valve, one forum where the disenfranchised may be sure that someone will listen to them.

And while it has long been a stepchild, criticized 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 the MCAD a revenue source, or to force it to support itself by fees, shows a basic misperception of its important function and a betrayal of the promise its founding represented.