Employment Discrimination

Forms of Discrimination Prohibited.

• Massachusetts Fair Employment Practices Act (M.G.L. c. 151B)                    
  
  
  • The MFEPA prohibits discrimination on the basis of race, color, natural or protective hairstyle, religion, national origin, sex (which covers sexual harassment), gender identity, sexual orientation (not including persons whose sexual orientation involves minor children as the sex object), genetic information, pregnancy or a condition related to pregnancy, age (over 40), ancestry, status as a veteran, mental or physical handicap and parental leave. It also prohibits retaliation against employees who oppose such discrimination. It applies to employers with 6 or more employees.
  
  
  • The MFEPA also prohibitys "associational discrimination," which is a claim that a plaintiff, although not a member of a protected class himself or herself, is the victim of discriminatory animus directed toward a third person who is a member of the protected class and with whom the plaintiff associates. Flagg v. Alimed, Inc., 466 Mass. 23, 27 (2013)
  
  
  • This statute is to be construed liberally for the accomplishment of its purposes. (M.G.L. c. 151B, s. 9)
  
  
  • Under the CROWN Act, which went into effect on October 24, 2022, "race" now includes traits historically associated with race, including, but not limited to, hair texture, hair type, hair length and protective hairstyles. "Protective hairstyle" includes, but is not limited to, braids, locks, twists, Bantu knots, hair coverings and other formations. (M.G.L. c. 4, s. 7 (62nd & 63rd))
  
  
  • In College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 162 (1987), the Massachusetts Supreme Judicial Court held that discrimination prohibited by M.G.L.c. 151B includes a work enviroment pervaded by harassment or abuse.
  
  
  • In Cuddyer v. The Stop & Shop Supermarket Company, 434 Mass. 521, 532 (2001), the Massachusetts Supreme Judicial Court held that a hostile work environment is one that is pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, and that poses a formidable barrier to the full participation of an individual in the workplace.
  
  
  • In Godfrey v. Globe Newspaper Co., 457 Mass. 113 (2010), the Massachusetts Supreme Judicial Court held that "reasonable accommodation" does not require an employer to fashion a new position or include waiving or excluding an inability to perform an essential job function, as would be done with creating a light duty job.
  
  
  • In Theidon v. Harvard University, 948 F.3d 477 (1st Cir. 2020), the First Circuit Court of Appeals held that the plaintiff had failed to meet M.G.L.c. 151B's "pretext only" standard that required sufficient evidence to create an inference that Harvard's reasons for denying her tenure were pretextual.
  
  
  • In Yee v. Massachusetts State Police, 481 Mass. 290 (2019), the Massachusetts Supreme Judicial Court held that, in appropriate circumstances, the denial of a requested lateral transfer may constitute an adverse employment action.
  
  
  • In DeWeese-Boyd v. Gordon College, 487 Mass. 31 (2021), a ministerial exception case, the Massachusetts Supreme Judicial Court first analyzed the threshold question, which was whether the defendant was a religious institution. The Court noted that to invoke the exception, an employer need not be a traditional religious organization, so long as its "mission is marked by clear or obvious religious characteristics." The Court thoroughly analyzed the factual record, particularly the school's faculty handbook and mission statements, for indications as to the religiosity of the institution and the religious nature of the plaintiff's job duties. In denying the ministerial exception, the Court noted that the integrative function of plaintiff's job was "not tied to a sectarian curriculum: it does not involve teaching any prescribed religious doctrine, or leading students in prayer or religious ritual."
  
  
  • In Adams v. Schneider Electric USA, 492 Mass. 271 (2023), the Massachusetts Supreme Judicial Court held that an employer can be found liable for violating Massachusetts' employment discrimination statute where there is evidence that a mid-level manager, directed to lay off employees, furthered a discriminatory corporate policy without knowingly doing so, the so-called cat's paw or innocent pawn theory of liability. It also held that that evidence of numerous statements by high-level corporate executives with decision making power may be considered on summary judgment to determine whether an adverse action was the result of corporate policy of discrimination.
  
  
  • The employee bears the initial burden of producing some evidence that an accommodation that would allow him or her to perform the essential functions of the position would be possible, and therefore that he or she is a "qualified handicapped person." Once an employee makes at least a facial showing that reasonable accommodation is possible, the burden of proof (of both production and persuasion) shifts to the employer to establish that a suggested accommodation would impose an undue hardship. If the accommodation proposed by the employee appears unduly onerous, the employer has an obligation to work with the employee to determine whether another accommodation is possible. Godfrey v. Globe Newspaper Company, Inc., 457 Mass. 113, 120 (2010) Upon a request for an accommodation to a handicap, the employer must engage in a timely, good faith and interactive process to determine an effective, reasonable accommodation. Russell v. Cooley Dickinson Hospital, Inc., 437 Mass. 443, 451 n. 6 (2002).
  
  
  • Any employee who has sustained a work-related injury and is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of such job with reasonable accommodations, shall be deemed to be a qualified handicapped person under the provisions of the MFEPA. (M.G.L. c. 152, s. 75B(1))
  
  
  • An employer must make reasonable accommodation to the religious needs of its employees. Creed or religion means any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religious institution or organization. Reasonable accommodation means such accommodation to an employee's or prospective employee's religious observance or practice as shall not cause undue hardship in the conduct of the employer's business. Undue hardship includes the inability of an employer to provide services which are required by and in compliance with all federal and state laws, including regulations or tariffs promulgated or required by any regulatory agency having jurisdiction over such services or where the health or safety of the public would be unduly compromised by the absence of such employee or employees, or where the employee's presence is indispensable to the orderly transaction of business and his work cannot be performed by another employee of substantially similar qualifications during the period of absence, or where the employee's presence is needed to alleviate an emergency situation. The employer shall have the burden of proof to show undue hardship. (M.G.L. c. 151B, s. 4(1A)) An employer's mere contention that it could not reasonably accommodate an employee is insufficient. The term "undue hardship" is the same term used in Title VII of the Civil Rights Act of 1964 regarding Federal protections from religious discrimination. The Massachusetts undue hardship standard, however, is "notably different" and allows for slightly broader religious protection. Massachusetts Bay Transportation Authority v. Massachusetts Commission Against Discrimination, 450 Mass. 327, 336-337 (2008)
  
  
  • The words ''creed or religion'' mean any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religious institution or organization. (M.G.L. c. 151B, s. 4(1A))
  
  
  • A three-part inquiry applies where an employee claims discrimination based on religion. The employee must first prove that the employer required the employee to violate a religious practice. The employee must also demonstrate he or she gave the employer the required notice of the religious obligations. The burden then shifts to the employer to prove that accommodation of the employes's religious obligations would impose on the employer an undue hardship as defined by the statute. Brown v. F.L. Roberts & Co., Inc., 452 Mass. 674, 676 (2008)
  
  
  • An employer cannot through a written application or oral inquiry or otherwise seek information regarding (a) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, (b) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, (c) any conviction of a misdemeanor where the date of the conviction or the completion of any period of resulting incarceration, whichever is later, occured 3 or more years prior, or (d) a criminal record that has been sealed or expunged. This prohibition does not apply to positions where a law creates a mandatory or presumptive disqualification base on a conviction of 1 or more types of criminal offenses.
  
  
  • An employer cannot discriminate or require information relative to a person's admission, on one or more occassions, voluntarily or involuntarily, to any public or private facility for the care and treatment of mentally ill persons, provided that such person has been discharged from such facility and can prove by a psychiatrist's certificate that he/she is mentally competent to perform the job.
  
  
  • The MFEPA does not prohibit the compulsory retirement of an employee in the private sector who has attained a certain age where the employer can prove that age is a bona fide occupational qualification. (M.G.L. c. 151B, s. 4(1B))
  
  
  • Similarly, public sector employees can be mandatorily retired at a specified age pursuant to any other general or special law. (M.G.L. c. 151B, s. 4(1C)) Under this provision police officers can be mandatorily retired at age 65. (M.G.L. c. 32, ss. 1 & 3(g)); Demeris v. Town of Foxborough, 99 Mass. App. Ct. 603 (2021)
  
  
  • The MFEPA does not prohibit the compulsory retirement of an employee who has attained 65 years of age and who for the 2-year period immediately before retirement is employed in a bona fide executive or a high policymaking position if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, in the aggregate of at least $44,000. (M.G.L. c. 151B, s. 4(17(b)))
  
  
  • The MFEPA does not prohibit the compulsory retirement of an employee who has attained 70 years of age and who is serving under a contract of unlimited tenure or similar arrangement providing for unlimited tenure at an independent institution of higher education or to limit the employment in a faculty capacity of such an employee. (M.G.L. c. 151B, s. 4(17(c)))
  
  
  • An employer cannot refuse to restore an employee to employment following an absence by reason of a parental leave.
  
  
  • On a finding of discrimination, the employee may be granted such relief as is appropriate, including lost wages and benefits, damages for emotional distress, and in appropriate circumstances compensatory damages for the loss of future earning capacity. Wynn & Wynn, P.C. v. Massachusetts Commission Against Discrimination, 431 Mass. 655, 674 (2000)
  
  
  • The MFEPA authorizes an award of damages for loss of future earnings and benefits that have been proven with reasonable certainty as attributable to the employer's misconduct subject to the employee's duty to mitigate. Conway v. Electro Switch Corp., 402 Mass. 385, 390 (1988)
  
  
  • Front pay damages must be proven with reasonable certainty. Five factors must be weighed in determining the amount of any front pay award: (1) the amount of earnings, including salary and benefits, that the plaintiff would have received between the time of trial and the plaintiff's projected retirement date: (2) the plaintiff's probable retirement date; (3) the amount of earnings that the plaintiff would probably have received from another employer until his retirement, which would reduce any front pay award; (4) the availability of other employment opportunities; and (5) the possibility of future wage increases and inflation. Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 102-103 (2009).
  
  
  • Punitive damages may be awarded only where the defendant's conduct is outrageous or egregious. Factors to be considered include: (1) whether there was a conscious or purposeful effort to demean or diminish the class of which the plaintiff is a part (or the plaintiff because he or she is a member of the class); (2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm, or recklessly disregarded the likelihood that serious harm would arise; (3) the actual harm to the plaintiff; (4) the defendant's conduct after learning that the initial conduct would likely cause harm; and (5) the duration of the wrongful conduct and any concealment of that conduct by the defendant. Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 110-111 (2009)
  
  
  • To be timely a charge of discrimination must be filed with the MCAD within 300 days after the alleged unlawful conduct took place. (M.G.L. c. 151B, s. 5) However, failure to file a timely charge is subject to waiver, estoppel and equitable tolling. Everett v. The 357 Corp., 453 Mass. 585, 600 n. 21 (2009)
  
  
  • A person claiming to be aggrieved by a practice made unlawful under this statute may at the expiration of 90 days after the filing of a complaint with the MCAD, or sooner if a commissioner assents in writing, but not later than 3 years after the alleged unlawful practice occurred, bring a civil action for damages or injunctive relief in the Superior Court for the county in which the alleged unlawful practice occurred. (M.G.L. c. 151B, s. 9)
  
  

• Massachusetts Civil Rights Act (M.G.L.c.12, ss. 11H - 11J)
  
  
  • This Act prohibits persons from interfering by threats, intimidation or coercion with the exercise of rights secured by the U.S. constitution, federal laws, the Massachusetts constitution or state laws.
  
  
  • The statute of limitations under this statute is 3 years. (M.G.L. c. 260, s. 5B)
  
  

• Massachusetts Domestic Violence Leave Act (M.G.L.c.149, s. 52E)
  
  
  • No employer shall interfere with any rights provided under this statute or discriminate against an employee for excersing such rights.
  
  
  • Employees who believe their employer has violated this law can file an online complaint under "Domestic Violence Leave" with the Massachusetts Attorney General.
  
  

• Massachusetts Equal Rights Act (M.G.L.c. 93, s. 102)
  
  
  • This section of the Massachusetts Equal Rights Act provides that all persons regardless of sex, race, color, creed or national origin have the same rights enjoyed by white male citizens to make and enforce contracts (including at-will employment contracts).
    
    
  • The statute of limitations under this statute is 3 years. (M.G.L. c. 260, s. 5B)
  
  
• Massachusetts Equal Rights Act (M.G.L.c. 93, s. 103)
  
  
  • This section of the Massachusetts Equal Rights Act provides that all persons, regardless of age or handicap, with reasonable accommodation, have the same rights as other persons to make and enforce contracts (including at-will employment contracts).
  
  
  • The statute of limitations under this statute is 3 years. (M.G.L. c. 260, s. 5B)
  
  
• Massachusetts Paid Family and Medical Leave Act (M.G.L.c. 175m)
  
  
  • An employer is prohibited from interfering with an employee's rights under the law or retaliating against an employee for exercising the employee's rights under the Massachusetts Paid Family and Medical Leave Act. This law creates a presumption of retaliation if there is any negative change to an employee's status or adverse action against the employee during the leave or within six months of the leave or within six months of an employee participating in proceedings or inquiries pursuant to statute. The employer must rebut the presumption with "clear and convincing evidence" that the action was not retaliation and that the employer had "sufficient independent justification" for taking that action and "would have taken such action in the same manner and at the same time the action was taken." M.G.L.c. 175M, s. 9(c)
  
  
  • An individual may bring a civil action in Superior Court for an alleged violation of the anti-retaliation, job restoration and continuation of benefits (e.g., the right to accrue vacation and other benefits, and the continuation of healthcare benefits) provisions. The action must be brought within three years of the alleged violation. A prevailing plaintiff may be awarded various remedies, including all common law remedies, three times the employee's lost wages and benefits, and reasonable attorney's fees and costs. In addition, the court may issue a temporary restraining order or injunction and order reinstatement. M.G.L.c. 175M, s. 9(d))
  
  
• Massachusetts Sexual Harassment Statute (M.G.L.c. 214, s. 1C)


• This statute prohibits sexual harassment. The Superior Court has jurisdiction to enforce this statute. The statute of limitations for such actions is 3 years. Morrison v. Northern Essex Community College, 56 Mass. App. Ct. 784, n. 4 (2002) However, if the claim is also actionable under M.G.L.c. 151B, a complaint must first be timely filed with the MCAD (300 days).


• Massachusetts Workers' Compensation (M.G.L.c. 152, s. 75B)


• Section 75B of the Workers' Compensation Act statute prohibits employers from discriminating against any employee because the employee has exercised a right under the Workers' Compensation statutes.


• The statute of limitations under this statute is 3 years. (M.G.L.c. 260, s. 5B)


• In the event that any right set forth in this statute is inconsistent with an applicable collective bargaining agreement, the collective bargaining agreement prevails.


• Specific Massachusetts Topics
  
  
  • Affirmative Action
    
    • Massachusetts Executive Order 227
      
      • Contractors with the Commonwealth with contracts for over $50,000.00 must have affirmative action programs.
      
      
  • Causation
    
    • If adverse action is taken against a satisfactorily performing employee in the immediate aftermath of the employer's becoming aware of the employee's protected activity, an inference of causation is permissible. Mole v. University of Massachusetts, 442 Mass. 582, 592 (2004) Temporal proximity of an employee's protected activity to an employer's adverse action is circumstantial evidence that allows a retaliation claim to get past summary judgment. Mesnick v. General Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992) A discharge occurring soon after an employee engages in protected conduct is indirect proof of a causal connection between the firing and the activity because it is strongly suggestive of retaliation. Oliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988)
      
    
    
  • Constructive Discharge
    
    • A constructive discharge occurs when the employer's conduct effectively forces an employee to resign. The standard requires a finding, based on an objective assessment of the conditions under which the employee has asserted he was expected to work, that the conditions were so difficult as to be intolerable. GTE Products Corp. v. Stewart, 421 Mass. 22, 33-34 (1995) A fact finder assessing a hostile work environment claim must consider the totality of the circumstances, which may include whether the discriminatory conduct is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. 15 LaGrange Street Corp. v. Massachuseetts Commission Against Discrimination, 99 Mass.App.Ct. 563, 572 (2021)
      
    
    
  • Comparable Pay
    
    • Under the Massachusetts statute, an employer cannot discriminate in the payment of wages between the sexes for work of like or comparable character or operations.
      
    • Differing wages can be paid where the difference is due to seniority.
      
      
  • Credibility of Witnesses
    
    • The ultimate issue of discrimination, raised by the parties' conflicting evidence as to the employer's motive, is for the fact finder to decide after weighing the circumstantial evidence and assessing the credibility of the witnesses, not for a court. Blare v. Husky Injection Molding Systems Boston, Inc., 419 Mass. 437, 445 (1995)
      
    
    
  • Damages
    
    • An employee has a duty to mitigate damages by reasonable efforts to secure other employment. Haddad v. WalMart Stores, Inc., 455 Mass. 91, 102 (2009)
      
    • Under the collateral source rule a back pay award need not be offset by unemployment compensation benefits or compensation received pursuant to an insurance policy. School Committee of Norton v. Massachusetts Commission Against Discrimination, 63 Mass. App. Ct. 839, 849 (2005); Buckley Nursing Home, Inc. v. Massachusetts Commission Against Discrimination, 20 Mass. App. Ct. 172, 183 (1985). This rule is not applicable when the party found liable has itself established a fund to be drawn on in the event of its liability to another person. Jones v. Town of Wayland, 374 Mass. 249, 262 (1978)
      
    
    
  • Disparate Impact
    
    • A violation of a plaintiff's right to be free from discrimination in opportunities for hiring, promotion and other terms and conditions of employment may be established by proof of the disparate impact of an employment practice on employment opportunities for employees of a particular race, color, religion, sex or national origin. Discriminatory motive is not a required element of proof in disparate impact cases. Such practice is illegal unless the employer can demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. Lopez v. Commonwealth, 463 Mass. 696, 709 - 711 (2012)
      
    
    
  • Disparate Treatment
    
    • An employer cannot intentionally treat an applicant or an employee differently because of his/her protected status.
    
    
    • An employee presents a prima facie case of illegal disparate treatment if the employee produces evidence to show that other employees who are similarly situated in all relevant aspects except for their protected status were treated differently. Matthews v. Ocean Spray Cranberries, Inc. , 426 Mass. 122, 129 (1997). The employees need not be identical, but they must be comparable. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)
  
  
• Genetic Information
  
  • It is unlawful for any employer to:
    • refuse to hire a person on the basis of that person's genetic information;
    • collect, solicit or require disclosure of genetic information from any person as a condition of employment;
    • solicit submission to, require, or administer a genetic test to any person as a condition of employment;
    • offer a person an inducement to undergo a genetic test or otherwise disclose genetic information;
    • question a person about their genetic information or genetic information concerning their family members, or inquire about previous genetic testing;
    • use the results of a genetic test or other genetic information to affect the terms, conditions, compensation or privileges of a person's employment;
    • terminate or refuse to renew a person's employment on the basis of a genetic test or other genetic information; or
    • otherwise seek, receive, or maintain genetic information for non-medical purposes. (M.G.L.c. 151B, ss. 1(22), 4(19))
    
    
• "Handicap" means:
  
  • A physical or mental impairment which substantially limits one or more major life activities of a person;
    
  • A record of having such impairment; or
    
  • Being regarded as having such impairment.
    
    
• Joint Employer
  
  • Going back to the seminal case of Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964), the concept of a "joint employer" has been defined as a company possessing "sufficient control over the work of the employees" of another company. This concept of joint employer has been regularly applied to cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ss. 2000 et seq., and to the Massachusetts Fair Employment Practices Act, M.G.L.c. 151B. See, e.g., Commodore v. Genesis Health Ventures, Inc., 63 Mass. App. Ct. 57, 61-62 (2005). Furthermore, under M.G.L.c. 151B, s. 4(5) it is also unlawful for any person "to aid, abet, incite, compel, or coerce" discrimination illegal under that statute.
    
  
  
• Retaliation
  
  • A claim of retaliation can succeed even if the underlying claim of discrimination fails, provided that in asserting the discrimination claim, the claimant can prove that he/she reasonably and in good faith believed that the employer was engaged in wrongful discrimination. Psy-Ed Corp. v. Klein, 459 Mass. 697, 706-707 (2011)
    
    
• Sexual Harassment
  
  • "Sexual harassment" shall mean sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions, or (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.
    
  • Same-sex sexual harassment by a heterosexual is prohibited under M.G.L.c. 151B.
    
  • Under M.G.L.c. 151B, s. 3(a) every employer must adopt a comprehensive sexual harassment policy and distribute it to their new employees at the time of hire and to all their current employees annually. The MCAD has actually adopted a Model Sexual Harassment Policy. (Policy)
• Employers are also encouraged to conduct education and training programs for all employees and additional training for supervisory and managerial employees within one year of commencement of employment.
• Sexual harassment is also illegal under M.G.L.c. 214, s. 1C
• The recently passed Speak Out Act, (42 U.S.C. s. 19401), signed into law on December 7, 2022, provides that with respect to disputes involving sexual harassment or sexual assault, nondisclosure and nondisparagement clauses that were agreed to before the dispute arose are not legally enforceable. These restrictions apply to agreements between employers and current, former and prospective employees, and independent contractors, and between providers of goods and services and consumers.
• Under a new Federal law entitled Ending Forced Arbitration Act (EFAA) amending the Federal Arbitration Act, as of March 3, 2022, any person alleging sexual harassment or sexual abuse can invalidate any predispute arbitration agreement or class/collective action waiver that otherwise would require the claim to be arbitrated. Agreements to arbitrate sexual harassment or sexual abuse claims made after such claims have arisen remain enforceable and cannot be invalidated. (9 U.S.C. s. 401)
• Courts, not arbitrators, decide if this Act is applicable.


• Sexual Orientation
  
  • Under Massachusetts law an employer cannot discriminate on the basis of sexual preference.
    
  
  
• Summary Judgment
  
  • Summary judgment is disfavored in discrimination cases based on disparate treatment because the question of the employer's state of mind (discriminatory motive) is elusive and rarely is established by other than circumstantial evidence. This requires the jury to weigh the credibility of conflicting explanations of the adverse decision. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005)