With regulation change, thousands of unresolved discrimination complaints now secret

By Wheeler Cowperthwaite
Patriot Ledger
January 24, 2020

https://www.patriotledger.com/news/20200124/with-regulation-change-thousands-of-unresolved-discrimination-complaints-now-secret

As of Friday, pending complaints made to the Massachusetts Commission Against Discrimination are no longer public record. The idea is to make people more comfortable coming forward, but critics say it only protects those accused of wrongdoing.

BOSTON — Things did not go well on Briana Bergstrom’s first day as a spray operator and general laborer in Quincy’s cemetery division.

Bergstrom said her supervisor, Scott Logan, started by criticizing how she parked her car, according to a complaint she filed with the Massachusetts Commission Against Discrimination in 2018. The abuse continued from there, she said, and included sexual comments made in front of other employees.

“Logan said I must be a natural blonde because I am so dumb,” she said in her complaint. “He told me I was as dumb as a box of light bulbs. He made comments about my weight.”

Fifteen months have passed since Bergstrom, a Quincy native, filed her gender discrimination complaint — one of three pending complaints against the City of Quincy — and the commission still has not decided whether it has enough evidence to move forward.

Similar pending discrimination complaints were treated as public records in Massachusetts until 2015, meaning they were made available to journalists, watchdog groups and other members of the public, and the state Appeals Court affirmed in November that they should remain public under the commission’s regulations.

But that changed Friday when the commission issued new regulations sealing complaints, and the information about them, until a finding of probable cause has been made. The move meant thousands of discrimination complaints became secret and off limits to the public, much to the concern of open-government advocates who see the change as tone deaf in the era of the #Metoo movement and reminiscent of secrecy around the Catholic Church’s clergy sex abuse coverup.

The commission says it needs the change to make people feel comfortable coming forward with complaints, but critics say it has the opposite effect and it only serves to protect those accused of discrimination.

“Nobody should have to be reminded of the dangers of having governmental agencies operating in secret,” said Jeff Robbins, a Boston lawyer who specializes in media law.

The Massachusetts Commission Against Discrimination, known as MCAD, is an independent state agency responsible for enforcing the state’s discrimination laws and deciding whether complaints have merit, essentially serving as both prosecutors and jury for a wide variety of violations, including for discrimination related to housing, employment and credit or based on sex, race, age and retaliation.

If it rules in a complainant’s favor, the commission can award attorney’s fees, back pay and damages and reinstate employees who it deems were illegally fired.

“We’re one of the few civil-rights agencies that does the investigation and prosecutes cases internally,” Assistant to the Commissioners H Harrison said.

The commission received 3,364 complaints in fiscal 2019, according to its annual report, many of them alleging discrimination against people with disabilities and illegal retaliation. It can take months or even years for commissioners to decide whether a complaint is backed by enough evidence, referred to as “probable cause,” to bring it before the commission for a trial-like public hearing.

By the end of fiscal 2019, MCAD had a backlog of 285 discrimination cases that were at least 18 months or older, down from 1,778 in 2015, according to the annual report, which noted that the commission “hopes” to reduce the investigation time to a year.

Among the pending complaints obtained by The Patriot Ledger, before the commission made them secret, was one filed by a Hingham police officer alleging he faced discrimination because of a disability, and another from a prosecutor accusing the Plymouth County district attorney’s office of retaliating against her.

And then there’s Bergstrom’s case against Quincy alleging gender discrimination and retaliation.

Christopher Walker, chief of staff to Quincy Mayor Thomas Koch, declined to comment on the complaint, saying it would be inappropriate to comment on “pending legal matters.” Bergstrom’s supervisor, Scott Logan, did not respond to requests for comment.

For years, pending discrimination cases were open to the public, much like criminal cases filed in a courthouse. But in 2015 the commission switched gears and started denying requests for the complaints, saying that their release “risks a chilling effect on complainants and witnesses, as well as unintended and unwarranted damage to respondents’ reputation and goodwill,” according to its public records guidelines.

Employment lawyer Whitfield Larrabee sued over the change in 2015, and the state Appeals Court ruled in his favor this past November, saying MCAD might be able to keep the pending complaints secret if it wanted to, but first it needed to update its regulations to reflect the change.

In fact, the commission had already started drafting new regulations in 2017. The commission held five meetings on the new regulations in September and October — before the court issued its decision — and received a total of 13 comments, according to records obtained by The Patriot Ledger.

No one offered public comment at those five meetings.

MCAD’s new regulations went into effect Friday, 65 days after the Appeals Court issued its ruling making the pending complaints public again.

Larrabee filed the only public comment opposing the regulations, which he said would “allow the MCAD to operate in secrecy without public oversight,” often for years.

“There are many complaints concerning governmental entities,” Larrabee wrote. “The public has a compelling need to know about alleged discrimination occurring in municipal, state and other government agencies close in time to when it is occurring.”

The new regulation also prevents those alleging they were victims of discrimination, including sexual harassment and retaliation, from easily identifying other instances involving the same culprits, he wrote.

As Boston University communications professor Maggie Mulvihill sees it, MCAD’s decision on the complaints shows that Massachusetts learned nothing from the Catholic Church’s sex abuse scandals, in which judges allowed entire lawsuits alleging abuse by priests to be kept secret.

“How many cases were impounded and the judiciary has never been held to account for that?” she said. “Why are we sealing off records that belong to the people?”

Boston lawyer Mitchell Garabedian, who has represented victims of sexually abusive Catholic priests, said the public release of allegations such as those in the discrimination complaints, as well as the abuser’s name, often results in a “triggering effect” for other victims and can empower them to also come forward.

“Victims often feel alone and isolated and at fault when they’ve been sexually abused,” he said. “When they learn there’s another victim out there, they realize they’re no longer alone and shouldn’t think of themselves as at fault.”

The Boston Globe made that same argument in an amicus curiae brief, also called a friend of the court brief, filed with the Appeals Court in Larrabee’s case.

When the complaints are made public, it creates a domino effect in which victims and witnesses are “emboldened” to come forward after seeing others do the same, the newspaper argued.

MCAD has argued in court documents that releasing the pending complaints would create a “chilling effect” and reduce the chances someone would file a complaint, but the Globe brief pointed out that the commission did not have any examples of retaliation as a result of complaints being released.

“Concealing allegations of discrimination results in a proliferation of discrimination because it causes discrimination to be swept under the rug,” Larrabee wrote in his comment on the regulations. “As the #MeToo movement has shown, when victims of sexual harassment and other abuse become aware that other individuals have made complaints, it encourages others to come forward.”

The commissioners – Sunila Thomas George, Neldy Jean-Francois and Monserrate Quiñones – denied interview requests.

Larrabee said the new regulation, and the commission’s refusal to release pending discrimination complaints, will likely be challenged in court, but it may be a long slog. His original lawsuit against the commission was filed in September 2015 and wasn’t decided by the Appeals Court until November 2019.