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comprehensive scheme to combat discrimi-nation. Waffle House, Inc., 122 S. Ct. at 765 & n.1.l [enforcing arbitration agreement would undermine “the detailed enforcement scheme [In Title VI1 and the ADA] created by Congress” and would serve as a disincentive to free reporting of complaints to F:KOC). Chapter 151B, like Title VI1 and the Americans with Disability Act (“ADA”), should be interpreted to avoid. such interference. - Id. ; Thomas, 437 Mass. at 540, 542. Factor 10: Mandatory conciliation by both the MCAD and EEOC is in place, which satisfies some of the major policy considerations supporting the use of arbitration. G.L. c. 1518, § 5; 804 CMR 1.18(1) (a); compare Waffle House, Inc., 122 S. Ct. at ’162 n.7. -, .- Factor 11: Chapter 1518 and the Massachusetts Arbitration Act, like Title VI1 and the Federal Arbitration Act, do not suggest that an arbitration agreement wou1.d displace Section 5 claims. G.L. c. 1518; c. 251, 5 1; Waffle House, - Inc., 172 S. Ct. at 761, 762. Thus, in all aspects, the MCAD has the characteristics identified by the Supreme Court as reasons to exempt an agency action from arbitration. For this reason, the court below refused to enjoin MCAD proceedings. See Joule, Inc. v. Simons, Order on Plaintiffs‘ Motion to Enforce an Arbitration Agreement Under Federal Arbitration Act and Massachusetts Arbitration Act:, C.A. No. 09-4920, Suffolk ss., Troy, J., January 7, 2010, App. 231. In addition, 23
Judge Rrassard, in a similar case, refuscd to compel arbitration of a pending MCAL) case, statinq: "The MCAI) acts as investigator, prosecutor and adjudicator at the administration proceeding and does so under the broad authority recognized by - Stonehill College v. MCAII, 441 Mass. 549 (2004) ." Mass. Bar Association, Inc. v. -. .- ,- Wclli.ngton and MCAD, Memorandum of Decision and Order on I - .- Plaintiff's ,. Motion to Reconsider, .- C.A. No. SUCV2009-1257 11, June 16, 2009, Addendum C. Thus, this Court should preserve the MCAD' s enforcement function. -, . -~ E. THE MCAD ACTS AS A PROSECUTOR, EVEN WHEN 1'1' IS ALSO PERFORMING A FACT-FINDING E'UNCTION The MCAD's proceedings should be protected, because it performs the role of a prosecutor, even when it is also conducting a fact-finding hearing. - See Waf€le House, Ir~c., - ~ .- 122 S. Ct. at 761. It is not possi.ble to segregate out MCAD's prosecutorial role from its fact-finding role, and replace the latter with arbitration, i.n a manner consistent with the MCAD's enforcement function under c. 1518. If a case is arbi,trated, how will the MCAD control how important overriding governmental interests are presented to the arbitrator? How will. the MCAD control the framing of the issues? Or assure qualified representation of the complainant, or proper presentation of evidence? Or ensure that adequate fact-finding has been accomplished? Or assure that remedies to protect the public interest have 24
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 28 and 29: case in suppori of the Complainant,
Page 30 and 31: Stonehill College, 141 Mass. at. 56
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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