Understanding the MCAD 'Probable Cause' vs. 'Lack of Probable Cause' Findings in Massachusetts
An MCAD investigation concludes with a finding of either Probable Cause or a Lack of Probable Cause (LOPC). If an LOPC is issued, the complainant has a strictly enforced 10-day window to file an appeal and demand a preliminary hearing to save their case.
After a discrimination complaint is filed with the Massachusetts Commission Against Discrimination (MCAD), the agency launches an investigation to determine whether illegal discrimination likely occurred. For both employees seeking justice and employers defending their businesses in Boston, Springfield, or New Bedford, the conclusion of this investigation is the most critical juncture of the administrative process.
Under Mass. Gen. Laws ch. 151B, § 5, the MCAD investigator will issue a formal determination: either 'Probable Cause' or a 'Lack of Probable Cause' (LOPC). This decision dictates whether the case moves forward toward a trial-like public hearing or is immediately dismissed. Because the stakes are incredibly high for both sides, consulting with a local employment lawyer from our directory is essential for navigating the aftermath of this ruling.
The Role of the Position Statement in Influencing the Outcome
Long before a decision is made, the employer is given the opportunity to defend themselves by filing a Position Statement. This is a comprehensive legal document submitted to the Massachusetts Commission Against Discrimination, Worcester or whichever regional office is handling the claim. The Position Statement outlines the employer's legitimate, non-discriminatory reasons for the actions taken against the employee.
The complainant (the employee) is then allowed to submit a Rebuttal, pointing out inconsistencies or falsehoods in the employer's story. The investigator relies heavily on these two documents, along with witness interviews and subpoenaed records, to make their determination. A poorly drafted Position Statement can easily result in a Probable Cause finding against an employer, while a weak Rebuttal can result in the case being dismissed via an LOPC.
What to Do if the Investigator Finds Probable Cause
If the investigator finds Probable Cause, it means there is sufficient evidence to believe that discrimination likely occurred. It is not a final guilty verdict, but it is a massive victory for the employee. The employer is now facing serious legal exposure.
Once Probable Cause is found, the MCAD mandates that both parties attend a Conciliation conference. This is a formal mediation session overseen by an MCAD conciliator who attempts to negotiate a financial settlement to avoid further litigation. If the parties cannot reach a settlement during conciliation, the case is scheduled for a Public Hearing (a trial) before an MCAD Commissioner, where a final, legally binding decision will be made and damages can be awarded, as guided by precedents like College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156 (MA Supreme Judicial Court 1987).
How to Appeal a Lack of Probable Cause (LOPC) Finding Within the Strict 10-Day Window
If the investigator issues a Lack of Probable Cause finding, the case is effectively dismissed. For the employee, this is devastating, but it is not necessarily the end of the road. You have the absolute right to appeal this decision, but the timeline is incredibly unforgiving.
You must file an appeal with the MCAD within exactly 10 days of receiving the LOPC notice. If you miss this 10-day deadline, the dismissal becomes final, and your state discrimination claims are permanently barred. Filing the appeal grants you a Preliminary Hearing before an Investigating Commissioner. At this hearing, your attorney must point out exactly where the original investigator made a mistake of law or overlooked crucial evidence. If the Commissioner agrees with your attorney, they can overturn the LOPC, issue a Probable Cause finding, and reinstate your case.
The Costs Associated with an MCAD Appeal
While the MCAD does not charge a filing fee to submit an appeal, hiring an attorney to represent you at the Preliminary Hearing involves legal fees:
- Contingency Fees: If your attorney is working on a contingency basis, they will likely handle the appeal as part of their overall percentage, though some agreements may require a small retainer for the appeal phase.
- Hourly Representation: If you are an employer defending a Probable Cause finding or an employee paying hourly, preparing for conciliation or a preliminary hearing will likely cost between $2,000 and $5,000 for the attorney's time to draft briefs and attend the hearing.
Probable Cause vs. Lack of Probable Cause
| MCAD Finding | What it Means | Immediate Next Steps |
|---|---|---|
| Probable Cause | Sufficient evidence discrimination likely occurred. | Mandatory Conciliation, then a Public Hearing. |
| Lack of Probable Cause (LOPC) | Insufficient evidence to proceed; case is dismissed. | Complainant has 10 days to file an appeal. |
Frequently Asked Questions (FAQ)
Who conducts the Preliminary Hearing for an LOPC appeal?
The appeal is heard by an MCAD Investigating Commissioner, not the original investigator who dismissed the case. It is a fresh set of eyes reviewing the legal arguments and evidence.
Does Probable Cause guarantee I will win money?
No. Probable Cause simply means your case has enough merit to proceed to trial. You must still prove your claims by a preponderance of the evidence at the Public Hearing or secure a settlement during conciliation.
Can an employer appeal a Probable Cause finding?
While an employer cannot file an immediate court appeal, they have the right under 804 CMR 1.08(4)(a) to file an administrative Motion for Reconsideration of Probable Cause Determination with the MCAD. The employer may move for reconsideration for good cause prior to the certification conference, or after discovery closes if there is no genuine issue of material fact.
Are MCAD conciliations confidential?
Yes. Everything discussed during the MCAD conciliation process is strictly confidential. If the case does not settle, the offers made during conciliation cannot be used as evidence at the Public Hearing.
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