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Success — Defeated Amendment #118 to H4820

July 7th, 2010 Sheila Decter Leave a comment Go to comments

From Sheila Decter
We asked for your help in defeating Amendment 118.
You responded with amazing speed and energy.
The right of employees claiming discrimination in the workplace — after a finding of probable cause — to determine whether they will have an administrative hearing before the MCAD or go to court has been preserved.  The proposed amendment could have had significant impact on cases long pending in the courts.
Thank you to the many groups and individuals who talked, wrote, called, and encouraged action with legislative leaders,  members of the executive department, labor leaders, executive agencies, citizen groups, and the broad spectrum of civil rights leaders.  You all deserve a great round of applause for responding so quickly and effectively.

We are especially proud of the Amicus Group – an informal coalition of members of the employment bar and civil rights groups and the work of the Executive Office of Access and Opportunity – the civil rights office established by Governor Patrick in response to an initiative encouraged by JALSA and friends.  We are also very fortunate to have an Attorney General whose office is immensely committed to civil rights, and a commission – the MCAD – that works hard to meet broad civil rights goals.  JALSA members were involved in setting out those initial civil rights goals and we continue to work to meet the challenge of working toward an equitable society.

So — your reward for the above success — is an urgent request to turn out that energy on a key related civil rights legislative issue.  There are only a few weeks left to this legislative session.  We need to work quickly. See new post (above).

When the House takes up a complex bill Wednesday (H 4820) to streamline the way various state agencies deal with economic development, it will also face 122 proposed amendments on a broad range of related and unrelated topics.  One of these proposed amendments — Amendment #118 – offered by Rep. Michael Costello, (who represents Amesbury, Salisbury, and the city of Newburyport), would have significant impact on the role of the Massachusetts Commission on Discrimination, particularly in its role representing clients who do not have private legal representation, but depend solely on that agency to consider claims of discrimination in employment.  For almost sixty years, the MCAD has provided the Commonwealth with a broad range of tools, not only to make the employees whole, but to make sure the discrimination does not recur.  The choice would now move to the employer as to whether to be subject to these remedial tools.

The full range of proposed amendments may be reviewed atwww.mass.gov/legis/house/H4820amends.pdf .

ADDITIONAL FACTS ON AMENDMENT #118 TO H. 4830

Amendment No. 118 (to H 4820) seeks to radically alter the civil rights enforcement mechanism that, for fifty years, has stood as testament to the Commonwealth’s unwavering commitment to eradicate unlawful discrimination.  Among other things,

Amendment No. 118 seeks to strip the Massachusetts Commission Against Discrimination of its statutory powers to remedy discrimination in cases where it has found “probable cause” to believe that unlawful discrimination has occurred. It allows employers with “probable cause” findings to bypass the MCAD’s administrative hearing and remediation process and to go directly to Court – a forum in which even represented plaintiffs are easily outspent, and in which fact finders are not equipped to craft the type of individually tailored orders (including reinstatement, training, and ongoing monitoring) that provide the MCAD with critical remedial tools to end discrimination.

Amendment No. 118 places an enormous burden upon the Office of the Attorney General to represent the thousands of unrepresented complaints whose cases would be subject to removal to Court if the private employer so chose.

In an effort to overrule Stonehill College v. Massachusetts Commission Against Discrimination, 441 Mass. 549 (2004) by legislation, Amendment No. 118 allows respondents who have been found guilty of unlawful discrimination to ignore any and all remedial orders entered by the MCAD in cases in which public hearings were held prior to the Stonehill decision, but where a final judgments have not yet entered.  In these cases – even those in which the MCAD’s decision has been upheld by the Superior Court and/or the Appeals Court – the employer would have the option simply to start over, nullifying all that went before.

This is a fundamental change in our civil rights enforcement scheme. We believe such a change is against the public interest.  Such changes should certainly not be made without the opportunity for vigorous debate – so that legislators may hear and carefully consider the voices of those whose rights would be so drastically compromised.

Please vote NO on Amendment 118.  Thank you for your consideration.
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