Law Offices of Paul H. Merry


The Law Office of Paul Merry covers all aspects of employment law and offers representation in negotiation, mediation, and litigation through appeal in all federal and state courts and agencies. The office concentrates on race, age, disability, sex, religion, and national origin discrimination claims. Representation is also offered in wrongful termination suits, sexual harassment, employment torts, contracts, covenants not to compete, and separation agreements. The Law Offices of Paul H. Merry is an independent office and is not affiliated with any other law firm.


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MCAD Filing Fees: What Will Be the Real Cost? 

Featured in the June 16, 2003 issue of Massachusetts Lawyers Weekly

By Paul H. Merry

Developing Electronic Evidence

Presented at the National Employment Lawyers Association

By Paul H. Merry

Although she spoke little English and had only recently arrived from El Salvador, Esmeralda Sanchez (not her real name) knew it was wrong for her supervisor to be hanging around in the offices she was cleaning at night in downtown Boston, looking for chances to ask her out or rub up against her.

But Sanchez didn't know what to do about it. Earning only minimum wage and sending much of that back to her aging parents at home, she feared losing her job. Neither she nor anyone in her small group of (mostly El Salvadoran) friends knew a lawyer.

But one of them had heard something about the Comission Contra Discrimination (Massachusetts Commission Against Discrimination); and it gave her hope.

Because she worked nights, she was able to find her way to the commission at One Ashburton Place in Boston and to meet with a staff member. For no charge, the staff member interviewed her — in Spanish — and initiated an investigation that resulted in the employer being called in and participating in MCAD-sponsored mediation.

This in turn led to an agreement to enforce anti-sex-harassment policies and to compensate Sanchez on account of the insomnia and anxiety she experienced from the unwanted sexual advances of her powerful superior.

Like Sanchez, poor, undereducated workers have long come to the MCAD when faced with workplace, housing and public accommodation discrimination and harassment.

Haitian Creole-speaking, Hmong, Russian, African as well as African-American and Hispanic citizens, along with women, the disabled, gays and lesbians and older Caucasians, stream through the agency's doors. But this long-established avenue to redress will soon be greatly narrowed if announced plans to impose filing fees of $125 are put into effect.

When it was founded in 1946, the MCAD was one of the few governmental agencies in the nation dedicated to eliminating discrimination on the basis of race, color, religious creed, national origin and ancestry. (Its federal counterpart, the Equal Employment Opportunity Commission, was not established until the 1970s.)

During the more than 50 years of its existence, the MCAD's mandate has expanded to include disability, sex, age and sexual orientation. Its commissioners have steadfastly stood up for the rights of Americans outside the main stream to be free of hostile or negative treatment on account of their status.

The commission's stand against racism is well known, and it has been a key battleground against sex discrimination and harassment as well. The courts have expanded its power by requiring that sex harassment complaints be routed through its process even though the statute that forbids such harassment does not specify the agency to handle the issue.

In the disability arena, the commission has held its ground against the onslaught that has so dramatically circumscribed the laws meant to protect the disabled in the workplace.

The Supreme Judicial Court has sustained the MCAD's policy (which expressly contradicts federal decisions) that persons with treatable disabilities such as diabetes or amputation remain entitled to the law's protections even if those disabilities have been ameliorated.

And most recently, the commission moved into new ground in determining that transsexuals are entitled to protection against discrimination under the sex discrimination provisions of the statute.

Faced with unprecedented budget shortfalls, the Romney administration earlier this year proposed that filing fees be imposed at the MCAD to help defray the cost of its operations. The announcement followed news that the agency, chronically underfunded, would lose a quarter or more of the funds it has received under prior state budgets.

The House of Representatives has now included MCAD fees in its version of next fiscal year's budget. And the governor may also have been thinking that imposition of these fees might reduce the high volume of claims that are filed at MCAD (many of which are later dismissed).

Some may also have thought that by reducing the number of complaints, the efficiency of the agency, long a target of criticism for delay and ineffectiveness, might be improved.

The governor's motivation is easy to understand, but this particular measure will strike a mortal blow at the precise purpose that gives meaning to the MCAD's mission: access to workplace justice for the most vulnerable members of society.

While MCAD does not report on its complainants' incomes, observation over some two years suggests the vast majority of them are minimum- or low-wage workers without realistic recourse to other means for securing justice.

Like Sanchez, they have families to support either here or elsewhere. They will rarely if ever have savings or other financial resources to draw upon. Their local communities, while perhaps close, are often small and limited in financial means and political influence.

Like Sanchez, they most often work in low-skilled positions, often for organizations not known for their enforcement of anti-harassment and discrimination policies.

Like Sanchez, the majority is not well-educated or sophisticated about the American system of justice. All they know is that the way they are being treated is not right, and that they need some outside party or agency to help them try to correct it.

By contrast, in the rarer instances where middle- and upper-class workers suffer age, disability, sex or other discrimination, they are often well positioned to seek private counsel and bring their cases forward with experienced professional support whether at the MCAD or in court.

To expect this constituency to produce a filing fee of more than $100 is unrealistic and unreasonable and will in the largest majority of cases mean the end of their hopes of redress against arbitrary, discriminatory treatment by large, better funded employers.

The likely result will be increasing frustration and anger among a population segment on whom the economy depends, but who will no longer have an outlet for their grievances or someone to listen to their complaints and explain whether they warrant redress.

One of the strongest arguments for the MCAD process is that it provides this kind of hearing by at least one branch of the establishment — state government — and an explanation of how the law views their experience.

The importance of this function is difficult to quantify, but also hard to understate. The MCAD deserves credit for seeking, without the cost, formality and sometimes delay of the court system, fairness and justice in how workers and tenants and sometimes retail customers are treated.

In a society many see as increasingly stratified, the access this agency provides is at least one safety valve, one forum where the disenfranchised may be sure that someone will listen to them.

And while it has long been a stepchild, criticized by establishment and organized civil rights advocates alike, the actions it has taken have given new dignity and honor to its unorganized, powerless constituency.

The fiscal crisis facing state government cannot be denied; and it makes sense that all agencies should share in the pain of addressing it. But to attempt to make the MCAD a revenue source, or to force it to support itself by fees, shows a basic misperception of its important function and a betrayal of the promise its founding represented.

One thing on which even lawyers must agree is that more and better evidence makes better justice. And we live in an age when technology has greatly improved both the quality and availability of many kinds of evidence, in both civil and criminal cases. Just as DNA technology represents a quantum leap forward in accurately separating innocent from guilty criminal suspects, computerized communications offer unprecedented opportunities to develop evidence in civil cases. But steps must be taken to assure the continuing availability of this new reservoir of evidentiary material if our legal and other dispute resolution processes are to realize the maximum benefits they offer.

The blossoming of electronic mail and computerized "word processing" over recent decades has produced a previously unimaginable amount of recording and documentation of both in-house and external communications. This documentation often provides extensive and intimate evidence concerning matters in dispute. In particular, many users of electronic mail regard it as a private communication mode more akin to telephone conversation than to formal interoffice memoranda. To foster closer relationships with workers, managers sometimes strive for a more casual, direct approach in e-mail than in more formal communications. As a result, electronic mail messages are often refreshingly candid and revelatory. These and the other numerous and illuminating records that business computers usually contain can be invaluable in determining or clarifying the intent of parties in contract formation, in intellectual property disputes and in countless other areas, including intentional torts and statutory discrimination claims.

Not only does the dawn of the computer age mean that in-house communications are set down with unprecedented frequency, but the quantity of such communications that can be accessed has been multiplied many times due to the vastness of computer memories and the capabilities of data search devices. Correspondence, witness statements, internal memoranda and other significant documents are now preserved in greater profusion than ever before. More significantly, computer memories often contain the various drafts and revisions of such documents, disclosing the drafters,’ editors’ and signatories’ thought processes. And unlike the past, when the difficulty of reviewing great quantities of material necessarily deterred many lawyers from even attempting to access it, computers now also make document searching and organizing stunningly faster and more efficient, permitting clearer, more thorough factual presentations at lower cost. Relevant materials can usually be sorted out from reams of related but unhelpful documents in mere seconds, by listing operative words and entering them in a search program.

Despite the obvious benefits it offers, though, the unique fragility and perishability of this rich reservoir of enlightening material raises serious concerns about its long-term availability. The same technology that makes the materials so readily available also facilitates their destruction at near the speed of light. Reams of electronic documents can be "deleted" accidentally or intentionally with a single keystroke. The dreaded "hard disc crash" has taught computer users the vulnerability of materials not adequately preserved on "backup" devices. But even records on backup media can be destroyed instantly by accidental contact with magnets, by intentional erasure or simply by being overwritten. And although "deleted" items can sometimes be restored from a machine’s storage media, the cost of such "data recovery" can be prohibitive; and once overwritten or erased, this material is gone with an irreplaceability only fire could produce for paper -- as most computer users have learned to their chagrin at one time or another.

And in addition to the obvious temptation such ease of destruction of damning material presents, other forces also militate for the elimination of electronic evidence. Despite the minimal cost, some corporate counsel object to maintaining it on grounds of expense. Confusion is also growing over the obligations of parties to preserve the extensive amounts of potentially useful material they may hold. Many companies’ practice requires backup tapes to be reused every few days or weeks, meaning that their contents are irretrievably lost. Thus even well intentioned record keepers may, in the absence of clear guidance, proceed in ways destined to doom important evidence to destruction even before protective orders can be requested.

All this means that special measures, including court rules changes, must be taken to establish beyond question that electronic records must be safeguarded and to clarify the obligations of electronic record keepers. Provisions specifying that electronic records must be preserved for particular time periods, perhaps keyed to statutes of limitations, would be of great assistance to parties wishing to comply with the law but restive about the cost and uncertainty of their obligations.

Such provisions will lighten the court’s load as well. In some cities, litigators are being advised to routinely include motions for protective orders requiring preservation of electronic evidence along with each complaint served. This trend, which appears likely to grow, means that without clear rules provisions more and more court time will be consumed by such motions, which are costly for parties as well, particularly individual litigants.

The new technology clearly represents an area where lawyers as advocates can seek relative advantage. But we would do better to see electronic evidence for the boon it represents, and do all we can to support the judiciary in making rules changes necessary to maximize the availability of this precious judicial resource and the improved quality of justice it makes possible. Once steps have been taken to require adequate preservation, the courts would be assured of the availability of the best materials on which to base the best-informed, fairest and most just decisions possible.