A Case of Too Many Cases?

When Lisa J. Schkolnick '88 took her grievance against the male-only admissions policy of a final club to the Massachusetts Commission Against Discrimination last fall, she was only one of many who asked the agency to investigate discrimination.

More than 3000 other people turned to the quasi-judical body last year to seek redress against a variety of organizations for unfair employment, housing and public accommodations practices. The commission has power akin to that of a lower court, it can award damages and order an organization to change its practices.

Created in 1946 as the Fair Employment Practices Commission (FEPC), the commission was expected to fill the gap left by the demise of a similar federal program in the aftermath of World War II. Previously--in 1943--the state had approved the Massachusetts Committee on Racial and Religious Understanding in response to racerelated violence around the country.

"This committee was the direct ancestor of the MCAD," writes Leon H. Mayhew in his 1968 study of the commission. "Its function was to carry out investigations and to sponsor and assist educational programs designed to combat discrimination."

When, in 1950, Massachusetts outlawed segregation and discrimination in public housing, it gave the FEPC power over this area, renaming it the Massachusetts Commission Against Discrimination. Since that time, both the state and the federal government have expanded their antidiscrimination laws, so MCAD's responsibilities have steadily grown.

Today, MCAD deals with discrimination in many areas--housing, employment, public accommodations--and in many forms--sex, race color, religion, ethnicity, age, marital status and ancestry, among them.

In 1956, the state passed a law guaranteeing that "students, otherwise qualified, be admitted to educational institutions without regard to race, color, religion, creed or national origin," adding universities and secondary schools--including Harvard--to MCAD's domain.

MCAD's most recent change of domain came in 1984 when the body was given responsibility for protecting the handicapped. Complaints from the handicapped, who were previously not protected by a state body, have made up 18 percent of all cases since that time, says MCAD's Deputy Director of Administration Terrence P. Morris.

Seventy percent of the agency's cases involve allegations of employment discrimination, and 20 percent involve housing. Public accommodations complaints, including charges of discrimination against groups of people by social organizations--like the nine final clubs--restaurants and even airlines, account for much of the rest.

Public accommodations cases had become less common in recent years, but Commissioner Kathleen M. Allen says, "it has started to increase again because issues of sex and race are pertinent again." Allen says the publicity surrounding recent U.S. Supreme Court decisions against single sex clubs has put this type of complaint back in the public eye. Most complainants file claims of gender or racial discrimination.

Many complaints are referred to the state body by other groups. When last fall Schkolnick decided to take the Fly Club to task for its men-only admissions policy, she took her grievance to the Cambridge Human Rights Commission. But that group lacked the resources to see the case through, so it referred Schkolnick to MCAD. Civil rights organizations, such as the National Association for the Advancement of Colored People (NAACP) and the Lawyers Committee for Civil Rights also deal with MCAD.

"We refer cases to them often--sometimes everyday," says a spokesman for the Civil Liberties Union of Massachusetts, the local branch of the American Civil Liberties Union. He said cases were often given to the commission "because they've got a large staff, and we've only have two lawyers."

The agency's caseload has been steadily increasing since its creation and has expanded rapidly in the past few years.

In fiscal year 1988, 3172 complaints were filed, almost double the number the commission annually dealt with a decade ago. The current figure is also more than 11 times MCAD's annual caseload during the 1940s and 1950s.

The caseload continues to increase, and Morris says that if the proposed Sexual Preference Bill--prohibiting discrimination based on sexual preference--is passed by the state, it "would increase our caseload skyhigh."

But the agency may be growing so fast that it cannot deal with cases effectively. Several years ago, the average case took 400 days, and MCAD changed its procedures to bring the waiting period down to 244 days. However, in fiscal year 1988, the average case duration--from filing to completion--had climbed back up to 288 days.

Massachusetts pays only 53 full-time MCAD employees spread out in four offices across the state. And federal and private sources fund less than a dozen more.

Budget cuts of more than $300,000 made this year will only exacerbate the manpower shortage. The commission receives the majority of its money from the state, although the federal Department of Housing and Urban Development and the Equal Employment Opportunity Commission (EEOC) also contribute to the budget.

Even though Morris says he expects federal funds to increase slightly this year because of an increased caseload, it still will not compensate for the fact that last year's $1,940,000 budget had been reduced to $1,578,00.

According to Morris, staff members will not be laid off as a result of the cut, but, with less money around, the commission may be less able to push cases to a timely end.

Last year the commission received $252,000 dollars from the Department of Housing and Urban Development and another $100,000 from other sources.

In addition, the EEOC pays $400 per employment complaint that it receives and automatically passes along to MCAD for processing. EEOC's annual contribution is based on the previous year's caseload, and the federal agency conducts reviews during the year to see if the funds are adequate, says Renee Devine, communications director for EEOC in Washington.

However, those funds might run short. Devine says Congress has "earmarked" $20 million for the EEOC to distribute to state and local agencies, a cap which the agency may exceed.

Such a shortfall could mean that MCAD would get less money to deal with more cases, in which case, Devine says, the federal body might take over some case processing.

Although the budget cuts and increasing caseload have placed additional burdens on MCAD, the agency has improved in some areas. Al Owens, director of the Boston branch of the NAACP says that since 1986, the commission has dealt with complaints more thoroughly. MCAD officials themselves say that the agency has grown more aggressive under Gov. Michael S. Dukakis' administration.

"The past two [NAACP] presidents cited [MCAD's] process as being not too careful or too slow," says Owens, but he adds that lately there have been few problems. He says the two groups now have "a good working relationship," adding that NAACP refers nearly 100 cases to the agency each year. He says he believes hearings are now held more often than in the past, and settlements are more frequent.

"That means someone is looking [out] more on behalf of the people being discriminated against," Owens says. And he adds he is pleased that MCAD hired two people who were referred to the commission by the NAACP's job placement program.

And last month, another change took place that may speed up MCAD's processes--the agency automated the filing of complaints. MCAD staff members now feed a complaint directly into computers in the intake room, instead of typing up forms. The new system cuts down on processing time, making it easier for an investigator to check the status of a case or keep track of new information. "It could save up to three weeks in clearing cases out of here," Morris says.

"We're trying to scratch our way into the 20th century," Allen says, adding that the computer allows cases to be simultaneously filed with the state and federal government, if they share jurisdiction.

And if the increasingly conservative U.S. Supreme Court restricts civil rights law as some liberals fear, that might also alter MCAD's caseload. If federal laws are struck down, it is possible that more state residents would turn to MCAD for protection under Massachusetts laws.