You’ve Been Served: The Clock Starts Now

An envelope lands on your desk. Inside is a complaint an employee has filed with the Massachusetts Commission Against Discrimination (“MCAD”). You have 21 days to respond to an MCAD complaint. What now?

What the MCAD Is — and Why the Process Matters

The MCAD is the state agency responsible for enforcing Massachusetts anti-discrimination laws, including those governing employment, housing, and public accommodations. This article focuses on employment discrimination and retaliation claims in Massachusetts. Any employee alleging discrimination or retaliation — whether represented by counsel or proceeding pro se — must file their claim with the MCAD. The agency investigates those complaints and, if the case proceeds, adjudicates them. For Massachusetts employers, understanding the MCAD complaint process — and knowing when to seek legal help — is essential. Missing deadlines or submitting information before consulting counsel can seriously prejudice your defense, including by waiving arguments or creating damaging inconsistencies.

Let’s walk through the key stages of an MCAD investigation process so you know what to expect when working with our firm to prepare your MCAD complaint response.

Service of the Complaint: Timing, Notice, and Next Steps

When an employee files an employment discrimination complaint, the MCAD will “serve” it on you by mail, providing formal notice of the allegations. Because the MCAD is a busy agency, service often occurs weeks or even months after the employee files, but eventually, you will receive a copy of the complaint that was filed with the MCAD and a letter from the agency outlining your duty to respond.

The 21-Day Deadline (and Extensions)

Critically, that letter will give you just 21 days from receipt of the MCAD complaint to submit your Position Statement. The MCAD will usually grant one 21-day extension, but additional extensions are not guaranteed. There is no time to waste.

The Position Statement: Your Chance to Tell the Full Story

The MCAD Position Statement is your opportunity to tell your side of the story. The employee’s complaint is just that—their version—and it often omits key facts or context. A strong Position Statement fills in those gaps and presents the full picture in a clear, credible, and persuasive way.

For example, an employee alleging discriminatory termination may fail to mention longstanding performance issues, prior discipline, a workplace altercation, or the fact that the employer thoroughly investigated internal complaints and found them unsubstantiated. Our job is to make sure the MCAD sees what the complaint leaves out.

Framing the Legal Issues Early

A good Position Statement also includes a robust Massachusetts employment law analysis. Employee complaints typically lack any meaningful discussion of the law, making the Position Statement the first real opportunity to frame the legal issues for the investigator. In our experience, a clear and well-reasoned Position Statement can strongly influence—and sometimes be effectively adopted in—the MCAD’s eventual determination.

First Move: Contact Outside Counsel (and Keep the Circle Small)

The first and best step when you receive an MCAD employment discrimination complaint is to call outside counsel. In our initial conversation, we’ll identify which employees will need to be interviewed to gather the facts necessary to prepare the Position Statement, while keeping the circle as small as possible. Litigation can be disruptive, and if the complaining employee is still employed, maintaining confidentiality helps avoid retaliation claims.

What Documents You’ll Need to Pull

We’ll also discuss the documents we need to review. These typically include personnel files, performance evaluations, disciplinary records, leave documentation, and relevant emails or other communications. Your employee handbook—if you have one—is often critical. Written policies, consistently applied, can be powerful evidence in your favor in an MCAD investigation.

Preservation Obligations: Stop Deletion and Secure ESI

From the moment you receive the MCAD complaint, you must preserve relevant documents. This obligation applies not only when litigation is underway, but whenever you reasonably believe that litigation may be possible. Any document retention policies that involve routine deletion must be suspended. Emails and text messages must be preserved. Cell phone settings should be adjusted accordingly. We will guide you through this process.

Failing to preserve evidence – even if unintentional – can result in serious sanctions during litigation that can materially prejudice your defense. In fact, if the complainant can show that you lost or destroyed relevant evidence, they could be entitled to a jury instruction that the missing evidence would have provided evidence supporting their claims.

Evaluating the Claims and Their Elements

As we gather facts and documents, we assess the legal claims at issue—for example, sex discrimination, disability discrimination, retaliation, and others. Each claim has specific elements the employee must prove. Think of it like a recipe for a cake: miss a key ingredient, and the cake will fall apart. In our Position Statement, we’ll want to show that the complainant’s case is missing at least one key element.

Legitimate Reasons, Pretext, and the Importance of Consistency

Employment cases often turn on whether the employer had a legitimate, non-discriminatory reason for its actions and whether the employee can show that reason was merely a pretext – a cover-up or excuse for discrimination. Consistency matters in MCAD proceedings. If different decision-makers give different explanations for the same action—perhaps the HR Director told the employee in the termination meeting that they were being laid off for budget reasons, but the CEO in an email tells the employee that it was performance concerns that drove the decision—that inconsistency alone can suggest pretext. We must ensure that what we say in the Position Statement matches the facts on the ground to ensure your best chance of success. We also look to comparative evidence, such as whether similarly situated employees outside the protected class were treated the same way. For example, if a female employee alleges she was disciplined more harshly than her male peers for not meeting her quarterly targets, then we would love to be able to show that, in fact, all men who performed similarly were also placed on a performance improvement plan, just like the employee in question.

Alternative Paths: Removal to Court and Mediation

Employers should also know that 90 days after filing with the MCAD, an employee may remove the case to Massachusetts court. While pro se employees rarely do so, represented employees often prefer court litigation, making the MCAD only the first step.

The MCAD also offers free mediation services, which we will evaluate with you as part of your employment litigation strategy.

Different Types of MCAD Complaints

MCAD complaints come in different forms:

• Pro se complaints are complaints filed by an individual without an attorney, and are often prepared with the assistance of MCAD staff. Sometimes, they can read like a catch-all list of workplace grievances rather than developed employment law claims. For that reason, it can be challenging to respond to these complaints. Investigators may also be more lenient with pro se complainants. At the same time, because the MCAD process is designed to be user-friendly for complainants, a pro se complainant is likely to remain at the MCAD rather than removing their case to court (more on this later), which can mean lower defense costs for you.
• Complaints filed by attorneys may be more polished and take the form of a detailed affidavit. Because most plaintiffs’ attorneys prefer to litigate in court, when you get an MCAD complaint filed by an attorney on behalf of their client, we will assess the risk that litigation will follow as we formulate a litigation strategy for you.

After the Position Statement: Rebuttal, Investigative Conference, and Follow-Up Requests

After the Position Statement is filed, it is served on the employee, who typically submits a Rebuttal. The MCAD may then hold an Investigative Conference via Zoom, attended by key decision-makers and the assigned investigator. At the conference, the investigator identifies additional information and documents needed from each side and sets deadlines—usually about 21 days—for submission. The scope of requests depends on the claims, ranging from accommodation records in disability cases to demographic and comparator data in race discrimination cases.

The Waiting Period—and the MCAD Determination

Once submissions are complete, there is often a lengthy wait due to the MCAD’s backlog—sometimes a year or more. Eventually, the MCAD issues a determination of probable cause or lack of probable cause. A lack of probable cause finding generally ends the case. While the complainant can appeal, those appeals are almost always unsuccessful. A probable cause finding leads to mandatory conciliation, and if settlement efforts fail, the case may proceed through discovery and ultimately to a public hearing—the MCAD’s version of a trial.

Using the Process to Reduce Future Risk

Defending an MCAD complaint often highlights opportunities to strengthen internal policies and improve consistency. We can help you update policies, address weaknesses, and manage future employee issues in ways that reduce legal risk.

To take a simple example, perhaps we are defending your termination of an employee in a protected class on the grounds that their performance suffered. It may be that you have some documentation of poor performance and behavioral issues – but perhaps you did not consistently perform reviews, and when issues arose in the moment, you did not document them in writing. More consistent documentation of performance and behavior issues will serve you going forward, and we can advise you on best practices as well as be a sounding board when issues arise. In addition, an employee handbook that outlines your standard practices around reviews and sets out your code of conduct, among other policies, will help you defend against future claims.

In addition, reaching out to us earlier in the process – before you terminate an employee – gives us the opportunity to advise you on how to carry out the termination. By talking through the potential risk exposure sooner, we can help you mitigate the danger of a future MCAD complaint.

Bottom Line

In short, responding to an MCAD complaint requires speed, strategy, and careful attention to detail. Consulting counsel early—ideally before issues escalate—puts you in the strongest possible position to protect your business.