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case in suppori of the Complainant, and this decision is responsive to t-he public interest. 804 CMR 1.09(5) (a) & (b) (2) - hen in cases where the Commission has permitted a pri.vate attorney to present the evidence favoring the Complainant on behalf of the Commissi.on, the Commission may nevertheless appoint an MCAD attorney to remain involved in the proceedings tu ensure protection of the CommissionIs hterest and the policies of c. 151B. 804 CMR 1.09(5) (a) & (b) ( 2). Remedies ordered by the MCAD are made pursuant to an equitable standard, that they "effectuate the purposes of this chapter." G.L. c. 151B, 5 5, 9 2. Included in the possible remedies are civil penalties, which are collected by the Commonwealth. G.I.. c. 151B, 5 5. Appeals of Orders of the MCAD in Court name the MCAI) as a party. G.L. c. 151B, 5 6; Superior Court Standing Order 1-96(2). In summary, a Section.5 claim is not a mechanism to adjudicate private rights,. "Unl.ike private actions pursuant to § 9, MCAD proceedings 'do not involve a suit I I, between two or more [private] persons . . . --- Stonehill College, 441 Mass. a t 567. The differences between Section 9 and Section 5 proceedings "are significant," and "the primary purpose of an administrative proceeding before the MCAD is to vindicate the public's interest in reducing discrimination in the workplace." Id., 441 Mass. at 562- 563. Thus, it is clear that the MCAD acts as a prosecutor, 19
and not mere1.y as 3 neutral farurn, i.n its processing of Section 5 claims. D. ‘THE MCAD’S ROLE IS ANALOGOUS TO THAT OF THE EEOC As shown above, “an employer cannot preclude a public enforcement agcricy from bringing an enforcement action for employee-specific relief by relying on an emp,loyer-employee arhi tratiori agreemenk . ” Skirchak . v. Dynamics Research Corp., . . 508 P.3d 19, 58 n.3 (1st. Cir. 2007). The Supreme Court has identified many factors to assist in determining whether an agency action is to be precluded by a private arbitration agreement. As will be shown below, every one of thosc factors demonstrates that the MCAD is a public enforcement agency whose section 5 proceedings.are safeguarded: Factor 1: Agencies that enforce the l aw and seek remedies for violations are imune from private arbitration clauses. Preston, 3.28 S. Ct. at 986-987. The MCAD was established to enforce c. 1518, and remedy violations of the law. - SZlonehi.ll . College, -. 443. Mass., at 563 (“The MCAD was established to enforce the Commonwealth‘s antidiscrimination laws”); G.L. G. 1518, 5 5; 804 CMR 1.02 (MCAD enforces c. 151B). Factor 2: The MCAD, like the EEOC, is not merely a neutral forum for litigating an issue between private parties. Stonehill College, 441 Mass. at 562-567; compare Waffle House, Inc., 122 S. Ct. at 761. Rather, both agencies act in the public interest, to advance a cause. 20
Page 1: COMMONWEALTH OF MASSACHUSETTS SUPRE
Page 4 and 5: - 11. MASSACHUSETTS PUBLIC POLICY I
Page 6 and 7: EEOC V. Waffle House, InC., 122 s.
Page 8 and 9: Wal.ker v. Lakewood, 272 F.3d 1114
Page 10 and 11: 1. STATEMENT OF ISSUES siyned by th
Page 12 and 13: STATEMENT OF TAE CASE MELA adopts D
Page 14 and 15: undermining the many cases pursued
Page 16 and 17: ARmJmwr The Massachusetts Employmen
Page 18 and 19: MCAD to enforce the law and rectify
Page 20 and 21: Labor Comissioner serves simply as
Page 22 and 23: The Supreme Court held that the arb
Page 24 and 25: The MUD was established to enforce
Page 26 and 27: If the private parties agree to res
Page 30 and 31: Stonehill College, 141 Mass. at. 56
Page 32 and 33: comprehensive scheme to combat disc
Page 34 and 35: een imposed? Or otherwise assure th
Page 36 and 37: G. JOULE'S OTHER ARGUMENTS ARE OFF-
Page 38 and 39: to create a stumbling block. The tr
Page 40 and 41: Moreover, the MCAD wrote in its ami
Page 42 and 43: and remedy violations of the statut
Page 44 and 45: up the substantial right to seek ad
Page 46 and 47: 2. The Threat To Reject. Simmons' F
Page 48 and 49: Components, Inc., 548 F.2d 24, 26 (
Page 50 and 51: nursing home contract was ruled enf
Page 52 and 53: When an employer says, "waive your
Page 54 and 55: Vokovich, 720 F.2d 909, 925 (8th Ci
Page 56 and 57: coerced"). It is up to state law to

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