MCAD Wins, Even When They Lose

"Whether you win or lose, you always win."  That was one of the more annoying things I learned to say on cue while at summer camp in my adolescence -- but like everyone else, I knew it was not really true. Yet, the MCAD, right after being dealt a blow by the SJC, the highest state court in Massachusetts, and being told to bud out of religious schools' personnel decisions, declared victory in its press release. Strange, but telling.

The case, filed at the MCAD by a religious school teacher against Temple Emanuel's religious school, alleged age discrimination.  The Temple brought a motion to dismiss for lack of subject matter jurisdiction on first amendment (religion) grounds, which the MCAD denied without a statement of reason.  The Temple appealed to the full Commission, which denied the appeal, again without reason, and ordered the Temple to provide the MCAD with its position statement and responses to considerable discovery requests.  The Temple filed a complaint against the MCAD in Superior Court, requesting a declaration that the MCAD had no jurisdiction and a preliminary injunction forcing the MCAD to dismiss the case.  The Superior Court agreed with the Temple and concluded that the employment decision was protected because "Hilsenrath's role as teacher at the religious school simply cannot be extracted from the school's overall religious mission and integration" into the synagogue. The commission appealed and the SJC took the case on its own motion.

The SJC, in Temple Emanuel v. MCAD, determined that the MCAD had jurisdiction to hear the case, but must consider the first amendment as an affirmative defense.  However, because the first amendment bars dictating to a religious school who should teach religion, (and perhaps the SJC did not want to trust the MCAD on remand here) the SJC ordered the MCAD to dismiss the case.  

So why is the MCAD celebrating?  Unfortunately, the simple answer is that the SJC said the MCAD can continue harassing religious employers who are clearly protected by the first amendment in their employment decisions by demanding their participation in an expensive and burdensome process each time the MCAD receives an employment discrimination complaint.  However, religious institution employers should take heart that the law is clear and, in fact, was expanded from its previous application to "ministers" to covering anyone who is involved in teaching religion.  But there is no avoiding the process -- employers must exhaust their remedies at the MCAD by consistently asserting their affirmative defenses and complying with MCAD requirements and only then can they expect to be let alone.  That expensive process has many employers trading away their rights for cheaper settlements.  And that is why the MCAD is celebrating.  

Don't get caught in the crossfire.  If you believe you may be engaging in an action that could start a lengthy MCAD battle, engage employment counsel before it gets out of hand.  If you need to respond quickly, as you do at the MCAD, make sure all jurisdictional and other defenses are asserted clearly early and often.  It may take a while, and the MCAD can make it painful, but it cannot ignore well grounded Constitutional rights or defenses.