Massachusetts Business Attorney · Employment Law
A letter from the Massachusetts Commission Against Discrimination (MCAD) saying a current or former employee has filed a complaint against your business is not something to set aside for later. The MCAD process runs on short deadlines, what you file early becomes part of the record, and the case can move from the agency to a courtroom at the employee’s choice.
This article explains, from the employer’s side, how an MCAD complaint moves forward under G.L. c. 151B, the Massachusetts anti-discrimination statute. The MCAD’s procedural rules are at 804 CMR 1.00, which the MCAD updated in 2026. Specific filing deadlines and procedures should always be checked against the current rules and against the notice your business actually received.
Who can file, and how long they have
Chapter 151B covers most Massachusetts employers with six or more employees (§ 1(5)). That is a much lower threshold than federal Title VII, which generally applies to employers with 15 or more employees. So a small business that has never worried about federal discrimination law can still be named in an MCAD complaint.
Section 4 lists the unlawful practices. In employment, it prohibits discrimination in hiring, firing, pay and the terms and conditions of employment because of protected characteristics that include race, color, religious creed, national origin, sex, gender identity, sexual orientation, genetic information, pregnancy or a related condition, ancestry, veteran status, age and disability, among others. Common claim types include disability discrimination and failure to provide a reasonable accommodation, sexual harassment, and age discrimination.
Under § 5, a complaint must be filed with the MCAD within 300 days after the alleged act of discrimination. Whether a complaint is timely is not always simple. It depends on what conduct is being challenged and when it happened, so do not assume a complaint is late just because the employee left your business long ago.
The EEOC may also be involved
The MCAD is a state fair employment practices agency. According to the U.S. Equal Employment Opportunity Commission, when a charge is filed with a state agency that has a worksharing agreement with the EEOC and the allegations are also covered by a federal law the EEOC enforces, the state agency “dual files” the charge with the EEOC, and usually one agency handles the investigation. Treat any EEOC notice you receive about the same facts as part of the same matter, not a separate problem.
The position statement: your first and most important filing
Once the MCAD authorizes an investigation, the business (the “respondent”) is served with the complaint and a notice that sets a deadline for its written response, called a position statement. The deadline is short, measured in weeks, and extensions are limited. Read the notice the day it arrives and calendar the date.
The position statement is not an informal letter. It is a formal filing that becomes a central part of the record, and the MCAD’s rules and the notice you receive set out what it must include, how it must be signed and who must be served. Expect it to be signed under the pains and penalties of perjury, and use it to raise all of your defenses. If a respondent fails to file one, the MCAD can take that into account against the business, and the employee can respond to what you say.
Because the position statement is sworn and central to the case, it should answer every allegation and attach the documents that support your side: the relevant policies, performance records, the reasons for the decision at issue, and how similar employees were treated. A statement that later turns out to be inaccurate or incomplete can do more damage than the original complaint.
Preserve evidence from day one. Losing relevant records after a complaint is filed can lead to an inference against the party that lost them. As soon as you receive a complaint, suspend any routine deletion of emails, texts, personnel files and other records that may relate to it.
What happens during the investigation
Section 5 directs that a commissioner, with the help of MCAD staff, make a prompt investigation. In practice, an MCAD investigator reviews the filings, may request additional documents, may interview witnesses and may hold an investigative conference with both sides. Attend every conference you are notified of; failing to participate can have serious procedural consequences.
The MCAD also offers mediation, which gives both sides a chance to resolve the case before the agency makes any finding. If you go, bring someone with authority to settle and a clear understanding of the facts and your exposure.
The probable cause determination
At the end of the investigation, the investigating commissioner decides whether there is probable cause to credit the employee’s allegations. The MCAD’s rules have defined probable cause as sufficient evidence on which a fact-finder could form a reasonable belief that it is more probable than not that the respondent committed an unlawful practice. This is not a final finding that your business discriminated. It means the case goes forward.
- Lack of probable cause. If the evidence is insufficient, the complaint is dismissed. Under § 5, the employee may request a preliminary hearing within ten days of service of the written notice, and the Commission must grant it. So a dismissal is not always the end of the matter at the agency.
- Probable cause. If probable cause is found, § 5 directs the Commission to try to eliminate the unlawful practice “by conference, conciliation and persuasion.” Conciliation is a settlement process, and the statute provides that what is said in conciliation efforts is not admissible as evidence.
The public hearing
If conciliation does not resolve the case, the MCAD can certify it for a public hearing, which works much like a trial. Under § 5, the respondent is given notice to answer the charges at a hearing, the testimony is taken under oath, and the Commission is not bound by the strict rules of evidence that apply in court. If no unlawful practice is found, the complaint is dismissed. If one is found, the Commission issues an order.
Hearing decisions can be reviewed within the MCAD by the Full Commission. A party aggrieved by a final Commission order can then seek judicial review in the Superior Court under § 6, which must be started within 30 days after service of the order. In Stonehill College v. Massachusetts Commission Against Discrimination (2004), the Supreme Judicial Court held that an employer does not have a right to a new jury trial after an MCAD decision.
What the MCAD can order an employer to pay or do
If the Commission finds a violation, § 5 authorizes it to order the business to stop the unlawful practice and to take affirmative action, including hiring, reinstatement or upgrading of employees, with or without back pay. Beyond that, the exposure includes:
- Emotional distress damages. The MCAD awards damages for emotional distress. The SJC in Stonehill held that these awards must be supported by substantial evidence of the distress and its connection to the unlawful act, and should be fair, reasonable and proportionate to the distress suffered.
- Attorney’s fees and costs. Section 5 provides that the Commission “shall” award reasonable attorney’s fees and costs to a prevailing complainant. In a long case, fees can exceed the damages.
- Civil penalties. Section 5 also allows a civil penalty payable to the Commonwealth: up to $10,000 if the business has no prior adjudicated discriminatory practice; up to $25,000 if it was found to have committed one other discriminatory practice in the five years before the complaint was filed; and up to $50,000 if it was found to have committed two or more in the seven years before the complaint was filed.
The employee can take the case to court
An MCAD complaint can turn into a lawsuit. Under § 9, an employee who has filed with the MCAD may file a civil action 90 days after filing the complaint, or sooner if a commissioner assents in writing, but not later than three years after the alleged unlawful practice. When the employee files in court, they must notify the Commission, the MCAD complaint is dismissed without prejudice, and the employee cannot later bring a complaint on the same matter back to the MCAD.
This is the employee’s choice, not the employer’s. As the SJC explained in Stonehill, the complainant keeps the choice between the agency forum and court. The remedies in court are broader: § 9 allows the court to award actual and punitive damages, plus reasonable attorney’s fees and costs unless special circumstances would make that unjust. In age discrimination cases, § 9 also provides for multiple damages (not less than two and up to three times actual damages) where the employer knew or had reason to know its conduct violated the law. So evaluate even a modest MCAD case with the possibility of court in mind.
Retaliation: the claim employers create after the complaint
Section 4(4) makes it unlawful to discharge, expel or otherwise discriminate against a person because that person opposed practices forbidden by Chapter 151B or filed a complaint, testified or assisted in an MCAD proceeding. Section 4(4A) separately prohibits coercing, intimidating, threatening or interfering with a person in the exercise of rights under the chapter.
A retaliation claim is separate from the underlying discrimination claim. An employer can successfully defend the original complaint and still be held liable for how it treated the employee after the complaint was filed. Once you learn of a complaint:
- Do not discipline, reassign, cut hours or change the duties of the employee without first reviewing the decision carefully and documenting the legitimate business reason.
- Tell managers involved not to discuss the complaint with co-workers or confront the employee about it.
- Remember that witnesses who help in the MCAD process are protected too.
For more detail, see our article on retaliation claims and Massachusetts employers.
Common mistakes employers make
- Missing the position statement deadline or asking for an extension too late.
- Writing a position statement that argues instead of documents. A sworn statement with general denials and no supporting records invites a probable cause finding.
- Giving reasons that change. If the reason in the position statement differs from what the employee was told at the time, that difference becomes evidence.
- Retaliating, even unintentionally, through scheduling, assignments or tone.
- Treating mediation as a formality instead of a real chance to resolve the case before fees and exposure grow.
Why early counsel matters
Most of the important decisions in an MCAD case are made in the first few weeks: what the position statement says, which documents go with it, how records are preserved and how the employee is treated going forward. Those decisions shape the probable cause determination and, if the employee moves the case to court, the lawsuit that follows. I work with businesses to evaluate the complaint, prepare the response and consider whether early resolution makes sense.
Frequently asked questions
How long does an employee have to file an MCAD complaint?
Under G.L. c. 151B, § 5, a complaint must be filed within 300 days after the alleged act of discrimination.
Does Chapter 151B apply to a small business?
Generally, yes, if the business has six or more employees. That is lower than the 15-employee threshold that generally applies under federal Title VII.
Can an employer move an MCAD case to court?
No. Under § 9, it is the employee who may file a civil action, generally 90 days after filing with the MCAD (or sooner with a commissioner’s written assent) and within three years of the alleged unlawful practice. The SJC in Stonehill confirmed that the forum choice belongs to the complainant.
Is a probable cause finding the same as losing the case?
No. Probable cause means the case goes forward to conciliation and, if it does not resolve, possibly a public hearing. The employee still has to prove the claim.
Getting help with an MCAD complaint
If your business has received an MCAD complaint, or an employee has raised a discrimination concern that may turn into one, act before the first deadline. Learn more about our Massachusetts business law services, or contact our office at 978-273-8337.
About the Author
Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises employers on discrimination complaints, MCAD proceedings and workplace policies. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
