Bill H.1739

HOUSE DOCKET, NO. 1962 FILED ON: 1/20/2011

HOUSE . . . . . . . . . . . . . . . No. 1739

By Mr. Costello of Newburyport, a petition (accompanied by bill, House, No. 1739) of Michael A. Costello relative to the Massachusetts Commission Against Discrimination. State Administration and Regulatory Oversight.

The Commonwealth of Massachusetts

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In the Year Two Thousand Eleven

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An Act relative to the Massachusetts Commission Against Discrimination.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 2 of Chapter 151B of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by adding after the word “purposes” in line 4 the following:-

“, provided that Commission policies are subjected to public review in draft form for ninety (90) days prior to final adoption”

SECTION 2. Section 3 of Chapter 151B of the General Laws, as appearing in the 2008 Official Edition, is hereby further amended by adding to the end of paragraph (5), prior to the period the following:-

“ , provided that Commission policies and practices are subjected to public review in draft form for ninety (90) days prior to final adoption”

SECTION 3. Section 5 of chapter 151B of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by adding at the end thereof the following paragraph:--

In the case of a public hearing in an employment discrimination matter that was held prior to May 6, 2004, and where the parties to the public hearing have not yet exhausted all avenues of judicial review, remand or appeal available under chapter 30A of the General Laws, or otherwise entered into a binding resolution of the matter, the commissioner shall immediately serve notice upon a complainant and respondent of their right to elect judicial determination of the complaint. Upon notification, if a complainant or respondent wishes to elect judicial determination, they shall do so in writing within 20 days of receipt of the notice. The person making the election shall give notice of the election to the commission and to all other complainants and respondents to whom the probable cause finding relates. The commission, upon receipt of the notice, shall dismiss the complaint filed and/or vacate the finding of the commission arising out of the public hearing as to all parties without prejudice and the complainant shall be barred from subsequently bringing a complaint on the same matter before the commission. If any complainant or respondent elects judicial determination, the commission shall authorize, and not later than 30 days after the election is made the complainant, through counsel, or the attorney general, in the case of an unrepresented complainant, to commence and maintain, a civil action on behalf of the complainant in the superior court for the county in which the unlawful practice occurred. The complainant may intervene as of right in the civil action. Any party to any civil action shall be entitled to a trial by jury, if so elected.

SECTION 4. Chapter 151B of the General Laws, as appearing, is hereby further amended by adding the following new section:-

Section 5A. Notwithstanding the provisions in Section 5, any person claiming to be aggrieved by an alleged unlawful practice by an employer or labor organization or employment agency because of race, color, religious creed, national origin, sex, sexual orientation, ancestry, age, or handicap to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions, or privileges of employment, unless based upon a bona fide occupational qualification as specified in section four 1, 1A, 1B, 2, 3, 4, 4A, 5, 9, 9A, 11A, 16, 16A may, by himself or his attorney, make, sign and file with the commission a verified complaint in writing which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful practice complained of, the prima facie case as alleged and contain other such information as may be required by the commission, provided the complaint is accompanied by a $250.00 filing fee, which may be waived or refunded by the commission in emergency situations or where proof of inability to pay is presented.

After the filing of the complaint, the commissioner shall cause to be issued and served in the name of the commission, a written notice, together with a copy of such complaint, as the same may have been amended, requiring the person, employer, labor organization, or employment agency named in such complaint, hereinafter referred to as the respondent, to answer the charges and state its position regarding such complaint in writing within 45 days of receipt of the written notice. Within five days of the commission’s receipt of the respondent’s position statement, the chairman of the commission shall designate an investigative officer to make a prompt investigation in connection therewith, including a scheduling of an investigative conference within 90 days from receipt of respondent’s position statement and if it is not so held within 90 days, or the complainant fails to attend the investigative conference, the complaint is dismissed, unless good cause is shown for the absence. If an attorney represents either the complainant or the respondent, the investigative officer will also be an attorney with the commission.

If such investigative officer shall determine after such investigation that no probable cause exists for crediting the allegations of the complaint, or 365 days from receipt of the complaint by the commission has passed, the commission shall dismiss the complaint, and within ten days from such dismissal, cause to be issued and served upon the complainant written notice of such dismissal.

If the commissioner shall determine after such investigation and no more than 365 days from receipt of the complaint, that probable cause exists for crediting the allegations of any complaint, the commissioner may allow for limited discovery provided that, based on traditional rules of evidence, discovery orders be issued or denied within 30 days of request by the investigative officer and provided that the investigative officer state in writing the reasons why discovery will materially benefit resolution of the complaint, both parties will be given a 90 day discovery period. Both parties will submit a pre-determination memorandum of fact and law 30 days after close of the discovery period.

At the close of the discovery period, the commission must consider summary judgment motions and if accepted, the commission will dismiss the complaint and notify in writing both parties and their attorneys of their right to elect judicial determination of the complaint. The person making such an election shall give notice of such election to the commission and to all other parties and their attorneys. The commission shall establish rules of practice for removing a case to federal or state court. If a motion for summary judgment is denied, the commission will determine the reasonable likelihood of success of prevailing prior to certifying the complaint for a public hearing.

All interested partied must attend all scheduled conferences and hearings. If a party fails to attend, except where there is a showing of good cause, that party will be defaulted. The testimony taken at hearings and conferences shall be under oath and transcribed at the request of any party.

If, upon all the evidence at the public hearing, the commission shall find that a respondent has engaged in any unlawful practice as defined above, the commission shall state its findings of fact and shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist form such unlawful practice and will take such affirmative action including but not limited to, hiring, reinstatement, or upgrading of employees, with or without back pay, or restoration to membership in any respondent labor organization, as, in the judgment of the commission, will effectuate the purposes of his chapter. Such cease and desist orders and orders for affirmative relief may be issued to operate prospectively. In addition to any such relief, the commission shall award reasonable attorney fee and costs to any prevailing complainant.

If, upon all the evidence, the commission shall find that a respondent has not engage in any such unlawful practice, the commission shall state its findings of fact and shall issue and cause to be served on the complainant an order dismissing the said complaint as to such respondent.

SECTION 5. Section 9 of Chapter 151B of the General Laws, as appearing in the 2008 Official Edition, is hereby further amended by adding in line 19, following “commission,” the following:

“ or the respondent to a complaint”

Name:	District/Address:	Date Added:
Michael A. Costello	1st Essex	1/20/2011