Boston Lawyer BlogMCAD issues new regulations dramatically reducing workers’ ability to fight employment discrimination
On June 19, the Massachusetts Commission Against Discrimination (MCAD) decided to quietly roll back protections for workers, revising its regulations to make it harder for employees to fight discrimination in the workplace. These changes came after the MCAD recorded a record number of backlogged cases for fiscal year 2025 (investigations that have extended beyond 18 months). The new regulations seem aimed at allowing the MCAD to address this backlog not by finding ways to address its caseload more quickly, but by giving it broad power to decline to investigate claims of discrimination altogether.
What is the MCAD?
The MCAD is a state agency that is required by law to investigate complaints of discrimination in housing, in the workplace, in places of public accommodation, and in higher education admissions. Employees who experience discrimination are required to file their claims with the MCAD before they can bring those claims in court. The MCAD process moves through two stages: first there is an investigation that results in a decision that there either is probable cause to believe discrimination occurred (a finding for the employee) or there is not probable cause to believe discrimination occurred (a finding for the employer). In fiscal year 2025 the MCAD found for the employer 85% of the time at this stage. When there is a finding of probable cause, the case then moves to conciliation, where the MCAD tries to resolve the case with agreement by the parties. If conciliation is not successful the case moves to a public hearing, where the Commission hears the case and decides whether the employer violated the law and what remedies to impose.
In January 2026 the MCAD published proposed changes to its regulations. It then accepted feedback from the public before publishing the final regulations in June.
What changes do the new regulations make?
One of the most consequential changes in the new regulations is a significant expansion in the MCAD’s power to dismiss claims of discrimination without investigating them at all. Under the Massachusetts Fair Employment Practices Law (called Chapter 151B), the MCAD is required to investigate complaints of discrimination. The new regulations, however, expand the situations in which the MCAD can dismiss a complaint without ever investigating. Until this month, the MCAD could dismiss cases without investigation only for “lack of standing, lack of jurisdiction, untimeliness, failure to state a claim of discrimination, frivolous claims, or where allegations are facially implausible or incapable of verification.” Under the new regulations, the MCAD can also decline to investigate claims if the “alleged discriminatory conduct has been sufficiently remediated or resolved,” if there is an “insufficient nexus between protected class and allegedly discriminatory conduct,” or if “[t]he public interest requires focusing Commission resources on complaints with greater impact on the mission to eradicate discrimination.” In practice, this means that employees who cannot afford a lawyer and are representing themselves at the MCAD are going to be held to a high standard of explaining how their experiences demonstrate illegal discrimination for their claims to have a chance of being investigated.
Another major change is that the regulations do away with the requirement of a live hearing for appeals, allowing them only at the discretion of the Commission, where before they were required.
The regulations add a requirement that if the Commission (presumably through the investigator assigned to a case) decides there is probable cause to believe discrimination occurred, an MCAD Commissioner must also review the case and agree that there is probable cause before a finding in favor of the employee can be made. In contrast, if the investigator finds there is not probable cause, a Commissioner does not have to agree with that decision before the finding in favor of the employer is entered. The new regulations remove the previous requirement that if there are genuine issues of material fact the case has to move forward to a public hearing.
Did the MCAD accept any of the feedback it received on the draft regulations?
As significant as the new changes are, they are not as bad as the MCAD’s initial proposed changes. After many civil rights groups and employee’s lawyers (including our firm) responded to the proposed changes highlighting the significant harm the changes would have for employees who experience discrimination, the MCAD dialed back some of the egregious changes it had planned to make. For example, the proposed revisions would have required every person filing a complaint to do so by registering for an online portal; eliminating the ability to file in person with the help of an MCAD employee, or to mail a complaint. The final regulations allow people representing themselves to continue to file their complaints in any of these three ways.
The initial proposed changes would have allowed the MCAD to dismiss a case without investigation not only for the reasons included in the final regulations, but also if the allegations in the complaint were “vague,” or if the “allegations of monetary and non-monetary harm appear de minimus, moot, or mitigated during preliminary investigation.”
Finally, the initial proposed changes would have entirely done away with the opportunity for discovery (exchanging of information between the parties) before a determination of probable cause was made. The final regulations retain discovery as an option at the discretion of the investigator on the case.
What are the consequences of these changes?
As many civil rights groups and employee’s lawyers (including our firm) made clear when these regulations were proposed, these changes raise the bar employees have to meet to have their cases investigated and findings of discrimination made. Because the regulations allow the MCAD to screen out cases simply because the allegations as stated in the complaint seem to have a “tenuous” nexus between the class and discriminatory conduct, if a defendants has papered over its discrimination enough to make it appear that it has been addressed, or if the Commission decides it wants to focus its resources elsewhere, they allow the MCAD to dismiss any complaint without investigation. This new screening process deprives employees of their right under the statute to have complaints that meet the MCAD’s jurisdictional requirements investigated. As Zalkind Law partner David Russcol explained to Massachusetts Lawyers Weekly in January: “The solution to a resource allocation issue is for the Legislature to fully fund the commission and give it the resources it needs,” not to “toss potentially valid complaints out the window.”
Doing away with the hearing for appeals also appears to contradict Chapter 151B, which says that upon a written request for a preliminary hearing to appeal a decision of no probable cause, “the commission shall allow such request as a matter of right.” G.L. c. 151B, § 5. The new regulation reduces this statutory “preliminary hearing” to a written appeal alone. In our experience, appeal hearings can be effective to address misunderstandings and errors in Lack of Probable Cause findings in a way that a written appeal cannot. Particularly since the new categories of grounds for dismissal are reviewable through the appeal process, this may be the only opportunity for a complainant, particularly an unrepresented complainant, to be heard as to why their complaint has merit or to address any questions the Commission has about the complaint.
The revisions raise the standard for an employee to establish probable cause by requiring two MCAD employees to agree there is probable cause before the Commission issues a decision in favor of the employee, but only one to issue a decision in favor of the employer. The new regulations give the MCAD employees making the probable cause determination much more leeway to make decisions in favor of the employer by giving them the authority to resolve factual, not just legal, disputes.
Overall, the new regulations place a heavy thumb on the scale in favor of employers. The new regulations will significantly increase the number of complaints that are not given the opportunity to resolve through the administrative process. For those employees who can get legal counsel, this may translate into more cases that end up in the court system, rather than being resolved earlier through the MCAD process. For employees who can’t get legal counsel, the dismissal of even valid complaints of discrimination may mean that the discrimination is never addressed. These new regulations seem to move the MCAD away from its mandate to address and remedy discrimination in employment, giving it wide latitude to decide not to investigate many cases.
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