In a decision issued late last year, the Supreme Judicial Court (SJC) ruled that guidelines issued by the Massachusetts Commission Against Discrimination (MCAD) do not have the force of law. Global NAPs, Inc. v. Awiszus, 457 Mass. 489 (2010). The Guidelines have widely been used by attorneys, workers, and employers to understand the scope and meaning of laws enforced by the MCAD, including the anti-discrimination law (M.G.L. c. 151B) and the Massachusetts Maternity Leave Act (MMLA, M.G.L. c. 149 § 105D).
Under the MMLA, female employees are entitled to maternity leave for “a period not exceeding eight weeks,” following which they are to be restored to their pre-leave positions. The Global NAPs case concerned whether an MCAD guideline could add a notice provision to the MMLA. The employer in Global NAPs had approved a maternity leave greater than eight weeks, but subsequently terminated the employee prior to her return to work. The Guideline required employers to inform employees if MMLA protection did not apply to maternity leave over 8 weeks. The SJC ruled that the MMLA statute did not support the Guideline’s notice provision because the language of the statue expressly limited the maternity leave period to eight weeks. The Court also held that an MCAD Guideline cannot alone form the basis for a notice provision that is not otherwise supported in the law. Following what other court decisions have observed, the SJC held that MCAD Guidelines are entitled only to “substantial deference.” Dahill v. Police Dept. of Boston, 434 Mass. 233 (2001). As a result, the Court found that the employer did not violate the MMLA by failing to give notice that it would not extend the job restoration provision of the MMLA beyond the mandatory eight week period.
Interestingly, this determination did not come in the underlying employment discrimination action but rather from an appeal in a professional liability (legal malpractice) action filed by the losing employer against their former counsel for their lawyer’s failure to timely appeal the underlying jury verdict against Global NAPs. In sum, the SJC found that had Global NAPs lawyers filed a timely appeal, they would have prevailed in overturning the jury verdict because the jury instructions impermissibly relied on the notice provisions set forth in the MCAD Guidelines.
Chapter 151B § 3(5) grants the MCAD the authority to create antidiscrimination regulations. The MCAD has used this authority not only to create regulations, but also to create guidelines, such as the one at issue in Global NAPs. A key difference between the two lies in the process used to create them; Guidelines are written and published by MCAD, while regulations are subject to the requirements of the Administrative Procedure Act (M.G.L. c. 30A), which mandates public hearings, notice, impact studies, advisory rulings, and other formal proceedings prior to the adoption and publication of a binding regulation.
As a result of this case, the MCAD is in the process of rewriting its Guidelines into legally-enforceable regulations. Employers and workers are cautioned that MCAD Guidelines do not necessarily reflect enforceable law, and will no doubt change during their conversion to regulations. For current MCAD Regulations and MCAD Guidelines, please visit http://www.mass.gov/mcad/forms.html.
* Bennett & Belfort, P.C., wishes to thank our intern, David J. Mattern, for his work on this entry.