By Robert A. Fisher and John Ayers-Mann

Seyfarth Synopsis: On January 24, 2020, the Massachusetts Commission Against Discrimination issued significant changes to its regulations regarding the processing of cases. The new procedural regulations are a mixed bag for employers. While some changes are helpful, other changes, such as expanded post-determination discovery and procedures for bringing charges on a class-wide basis, create new burdens on employers.

On January 24, 2020, the Massachusetts Commission Against Discrimination issued significant revisions to its procedural regulations. The procedural regulations govern the Commission’s investigation of a charge of discrimination and the litigation of claims after a probable cause determination. The revisions represent the first change to the procedural rules in 21 years. Overall, the new regulations are mixed bag for employers. While some of the changes will promote efficient case processing, other changes are more burdensome, including enhanced post-determination discovery and procedures to allow claims to proceed as class actions before the Commission.

Among the more welcome changes, the regulations allow employers to move for reconsideration of the Commission’s probable cause determination at any time prior to the certification conference. Under the old rules, once the Commission had made a probable cause determination, an employer did not have a mechanism to avoid a public hearing. The new reconsideration rule enables an employer to move to dismiss the case after engaging in post-determination discovery. The rule is akin to a summary judgment motion in court in that an employer can obtain reconsideration if there is an absence of a genuine dispute of material fact. Once a respondent moves for reconsideration, the Investigating Commissioner may grant the motion and issue an order reversing or modifying the probable cause determination. This new mechanism will be an invaluable tool for employers seeking to dispose of claims without undergoing a public hearing.

The new regulations also grant the Commission the authority to conduct Commission-sponsored mediation overseen by the Investigating Commissioner. However, this may be problematic in some instances. In a typical mediation, parties are able to freely share information without the concern that the information will be used in the litigation, if mediation is unsuccessful. This safeguard does not exist under the new rules. In Commission-sponsored mediation, the Investigating Commissioner serves as the mediator, but should mediation be unsuccessful, the Investigating Commissioner would resume his or her role as the factfinder. Thus, any employer considering mediation before the Commission should carefully consider the information that it shares during the process.

The Commission’s new regulations also significantly expand the discovery mechanisms available to employees at the administrative level. Previously, complainants could take depositions of individuals, such as supervisors or human resources professionals, but could not notice depositions of organizations themselves. The new regulations allow complainants to notice and depose organizations through use of a Rule 30(b)(6)-style deposition. In traditional court litigation, 30(b)(6) depositions are particularly onerous because in many instances employers may need to prepare multiple witnesses on numerous matters in order to appropriately respond. Thus, the Commission now permits complainants to demand that employers present witnesses who can testify on behalf of the organization on multiple topics. In addition to allowing depositions of organizations, the regulations afford parties the opportunity to propound thirty interrogatories—more than a litigant is entitled to in state court. Accordingly, the Commission’s new regulation threatens to impose significant litigation costs on respondent organizations.

Perhaps most notably for employers, the new rules authorize the Commission to preside over a class action or initiate such class actions sua sponte. The regulation requires the Commission to make findings similar to those required to maintain a class action under the Federal Rules of Civil Procedure and allows parties to appeal orders of the Investigating Commissioner to the Full Commission. While the authority of the Commission to oversee class action adjudications has been questioned by the courts in the past, the Commission’s decision to include class action mechanisms in its new procedural regulations may indicate that the Commission has a renewed interest in presiding over and even initiating class actions at the agency level.

On balance, the Commission’s revisions to the procedural regulations increase the burden that employers are likely to experience at the agency level. Although it is unclear whether the rules will encourage Complainants to keep their claims at the agency level, rather than removing them to superior court, the new regulations show that the Commission is poised to import more aspects of formal litigation into agency proceedings.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.