HOUSE DOCKET, NO. 3677        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3312

The Commonwealth of Massachusetts

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PRESENTED BY:

Kenneth I. Gordon

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to enhance investigations of sexual harassment and discrimination.

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PETITION OF:

HOUSE DOCKET, NO. 3677        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3312

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act to enhance investigations of sexual harassment and discrimination.

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

Chapter 151B of the General Laws is hereby amended as follows:

Section 11. In any case where the attorney general has authority to institute an action or proceeding under section five of this chapter, in lieu thereof and with the consent of the commission, the attorney general may accept an assurance of discontinuance of any conduct in violation of this chapter from any person or entity alleged to be engaged or to have been engaged in such conduct. Such assurance may, among other terms, include a stipulation for the voluntary payment by such person or entity of the costs of investigation, or of an amount to be held in escrow pending the outcome of an action or as compensation to aggrieved persons, unless an enforceable contract containing good and valuable consideration accepted by the person alleged to be aggrieved by a violation has been previously executed by said person. Any such assurance of discontinuance shall be in writing and be filed with the commission.  Matters thus closed may at any time be reopened by the attorney general for further proceedings in the public interest. Any statute of limitations will be tolled between the date of the filing and reopening of any such matter. Evidence of a violation of such assurance shall be prima facie evidence of a violation of this chapter in any subsequent proceeding brought by the attorney general.

Section 12. (1) Whenever the attorney general or the commission believes a person or entity has engaged in or is engaging in any conduct declared to be prohibited by this chapter, the attorney general or commission may conduct an investigation to ascertain whether in fact such person or entity has engaged in or is engaging in such prohibited conduct. In conducting such investigation the attorney general or commission may (a) take testimony under oath concerning such alleged unlawful method, act or practice; (b) examine or cause to be examined any documentary material of whatever nature relevant to such alleged unlawful method, act or practice; and (c) require attendance during such examination of documentary material of any person having knowledge of the documentary material and take testimony under oath or acknowledgment in respect of any such documentary material. Such testimony and examination shall take place in the county where such person or entity resides or has a place of business or, if the parties consent or such person is a nonresident or has no place of business within the commonwealth, in Suffolk county.

(2) Notice of the time, place and cause of such taking of testimony, examination or attendance shall be given by the attorney general or commission at least ten days prior to the date of such taking of testimony or examination.

(3) Service of any such notice may be made by (a) delivering a duly executed copy thereof to the person to be served or to a partner or to any officer or agent authorized by appointment or by law to receive service of process on behalf of such person; (b) delivering a duly executed copy thereof to the principal place of business in the commonwealth of the person to be served; or (c) mailing by registered or certified mail a duly executed copy thereof addressed to the person to be served at the principal place of business in the commonwealth or, if said person has no place of business in the commonwealth, to his principal office or place of business.

(4) Each such notice shall (a) state the time and place for the taking of testimony or the examination and the name and address of each person or entity to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs; (b) state the statute and section thereof, the alleged violation of which is under investigation and the general subject matter of the investigation; (c) describe the class or classes of documentary material to be produced thereunder with reasonable specificity, so as fairly to indicate the material demanded; (d) prescribe a return date within which the documentary material is to be produced; and (e) identify the members of the attorney general's staff to whom such documentary material is to be made available for inspection and copying.

(5) No such notice shall contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of the commonwealth; or require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of the commonwealth.

(6) Any documentary material or other information produced by any person or entity pursuant to this section shall not, unless otherwise ordered by a court of the commonwealth for good cause shown, be disclosed to any person other than the authorized agent or representative of the attorney general, unless with the consent of the person producing the same; provided, however, that such material or information may be disclosed by the attorney general in court pleadings or other papers filed in court.

(7) At any time prior to the date specified in the notice, or within twenty-one days after the notice has been served, whichever period is shorter, the court may, upon motion for good cause shown, extend such reporting date or modify or set aside such demand or grant a protective order in accordance with the standards set forth in Rule 26(c) of the Massachusetts Rules of Civil Procedure. The motion may be filed in the superior court of the county in which the person served resides or has his usual place of business, or in Suffolk county. This section shall not be applicable to any criminal proceeding nor shall information obtained under the authority of this section be admissible in evidence in any criminal prosecution for substantially identical transactions.

(8) The provisions of this section are to be interpreted consistent with the provisions of Chapter 93A of the general laws in addition to the provisions of this chapter.

(9) Upon request of the commission, the attorney general will provide any discovery obtained pursuant to this section to the commission.

Section 13. (a) Except as may be placed under protective order by the commission or processed as a pseudonym complaint, any charge of discrimination filed pursuant to section five of this chapter which has resulted in a finding of Probable Cause for Crediting the Allegations, along with the investigative or other determination rendered pursuant to sections five and six of this chapter, shall be available for public inspection upon making arrangements with the commission as soon as practicable as of the date of filing.  The name of any person alleging to have been the victim of sexual harassment or discrimination, including the charging party, must be redacted from any record to be released under this section unless prior written authority is provided to the commission by the person whose name is to be released; (b) The commission will provide the attorney general with the name of any person or entity who has been subject to civil penalties pursuant to clauses (b) and (c) of Section 5 of this Chapter each time any such person becomes subject to the provisions of those clauses, whether or not such civil penalties were in fact imposed, along with each Charge of Discrimination and any finding by the commission; (c) any public statement about an investigation conducted under this chapter shall not identify the victim of any alleged sexual harassment, sexual assault or any other discriminatory conduct without the written assent of the victim.

Section 14. Section 10B of chapter 66 shall be amended as follows at line 40:

The name, home address, telephone number, personal email address or place of employment or education of any person who filed a claim of discrimination under chapter 151B shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed.