Tuesday, October 28, 2014

MCAD Gets Flak For Massive Backlog

The Massachusetts Commission Against Discrimination is overwhelmed with cases. While that fact has long been known to lawyers who practice at the Commission, it was only recently publicized in a WBZ-TV news story. As part of the news segment, WVZ interviewed Commissioner Jamie Williamson, who chairs the Commission, and even she acknowledged that the workload does not allow the Commission to fulfill its mission.

In this writer's opinion, the truth is much worse than what the story reported. While WBZ noted that cases can take three to four years to reach completion,  cases that proceed to a full hearing ake  much longer. I have had cases where the MCAD took over three years just to issue a probable cause finding. This delay results in egregious injustice when the decision is a lack of probable cause, because Chapter 151B -- the state anti-discrimination statute -- has a three year statute of limitations, which means that after three years from date of the discriminatory action, the employee can no longer file a lawsuit. This is true even if the employee has already filed at the MCAD. A lack of probable cause issued three years later means the employee is prevented from going to court by a decision written often by a legal intern.

Transgender federal employee subjected to discrimination

Last Thursday, the U.S. Office of Special Counsel determined that the Army discriminated against a male to female transgender employee by consistently referring to her with male pronouns, restricting her bathroom use, and refusing to give her work. The Washington Post reports that Tamara Lusardi, a veteran and civilian Army software specialist, was reportedly called "he" and "it" after she transitioned from male to female in 2010 and . Regarding the restriction on her use of the bathroom, the Army contended that other female employees felt uncomfortable with her presence in the bathroom. The Office of Special Counsel responded that co-worker preference cannot alone justify workplace discrimination.

The decision is another example of how transgender persons are finding increasing protection in employment anti-discrimination laws.  The decision is also remarkable for another reason: Army officials appear to have at least attempted to treat Ms. Lusardi's transition respectfully. According to the report, one official told her to mindful that some employees did not understand what she had gone through and why she used female restrooms; this same official, while expressing concern for the comfort of co-workers, consistently expressed a desire for Ms. Lusardi to be treated with fairness and respect. As this case shows, the good intentions of an employer are not enough. Discrimination does not require evil intent; it simply requires treating an employee differently on the basis of a protected characteristic. Even when employers do this for benign reasons, they still violate the law.