for Suffolk County - Mass Cases

I. TBE W' S INVESTIGATIVE AND LAW ENEoRcEMplT EUNCTIONS
ARE NOT DERAILED BY A PRIVATE A m
BETWEi3J OTHER
PARTIES
Under Sections 5 and 9 of c. 151B, employees have the
choice of litigating their discrimination claims at the
Massachusetts Commission Ayahst Discrimination (Secti.on 5
claims), or by de novo trials in Court (Section 9 clajms) .
G.L. c. 151B, §§ 5, 9; Stonehill College v. MCAD, 411 Mass.
549, 565, cert. denied sub nom. Wilfert Rros. Real.ty Co. v.
MCAD, 543 U.S. 979 (2004). The Supreme Judicial Court has
held.that a clearly worded arbitration agreement, signed by
an employee and employer, may be enforceable as against a
pending Section 9 action in Court. Warficld v. Beth Israel
Deaconess Medical Center, Inc., 454 Mass. 390, 393 n.6, 398
(2009). This case addresses a different. question: whether
an arbitration provision between an employee and employer
will prevent the MCAD from investigating and pursuing a
section 5 claim.
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The answer should clearly be "no," because the MCAD
acts as a goverrunental investigator and prosecutor in
Section 5 actions, and that role should not be impaired by
private arbitration agreements. The United States Supreme
Court has declared that enforcement actions of the Equal
Employment Opportunity Commission (EEOC), which is the
MCAD's sister organization, are not blocked by arbitration
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agreements. EEOC v. Waffle House, Inc., 122 S. Ct. 754
(2002). Since termination of the MCAD's Section 5
proceeding would displace the independent authority of the
S