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 and mental or physical handicap. It also prohibits retaliation against employees who oppose such discrimination. It applies to employers with 6 or more employees. 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 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."
  
  
  • 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. The SJC looks to the Federal cases decided under the ADA as a guide to the interpretation of M.G.L. c. 151B. Russell v. Cooley Dickinson Hospital, Inc., 437 Mass. 443, 451 n. 6 (2002).
  
  
  • 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)) See also Brown v. F.L. Roberts & Co., Inc., 452 Mass. 674 (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.
  
  
  • An employer cannot refuse to restore an employee to employment following an absence by reason of a parental leave.
  
  
  • 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).
  
  
  • On July 26, 2022, Gov. Baker signed H.4554, the Creating a Respectful and Open World for Natural Hair ("CROWN") Act. "Race" is now defined to include "traits historically associated with race, including, but not limited to, hair texture, hair type, hair length and protective hairstyles", the later of which is defined to include, without limitation, "braids, locks, twists, Bantu knots, hair coverings and other formations." This Act takes effect on October 24, 2022.
  
  
  • The MFEPA does not apply to employers with fewer than six employees.
  
  

• Massachusetts Comparable Pay Act (M.G.L. c. 149, ss. 105A-C).
  
  
  • The Massachusetts Comparable Pay Act prohibits wage discrimination on the basis of sex between comparable jobs. It also prohibits retaliation against employees who oppose such discrimination.
  
  
  • ''Comparable work'' is work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions. Job title or description alone does not determine comparability.
  
  
  • A variation in pay is not prohibited if based upon 1) seniority, not reduced due to a pregnancy leave or protected parental, family and medical leave, 2) a merit system, 3) an earnings system measured by quantity or quality of production, 4) geographic location, 5) education, training or experience related to the job, or 6) travel if a condition of the job.
  
  
  • An employer who violates this statute is liable to the employee affected in the amount of the employee's unpaid wages and in an additional equal amount of liquidated damages.
  
  
  • An employer who within the previous 3 years and prior to the commencement of the action has completed a self-evaluation of its pay practices in good faith and can demonstrate that reasonable progress has been made towards eliminating wage diferentials based on gender will have a defense as to its liability for liquidated damages and depending upon whether the evaluation was reasonable in detail and scope will also have a defense to its basic liability.
  
  
  • The statute of limitations under this statute is 3 years.
  
  
  • Under a recent amendment it is now unlawful (1) to require an employee to refrain from inquiring about, discussing or disclosing information about either the employee's own wages or about any other employee's wages, or (2) to seek the wage or salary history of a prospective employee from the prospective employee or a current or former employer.

• 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.

• Massachusetts Domestic Workers Act (M.G.L.c.149, s. 191)
  
  
  • This Act makes it an unlawful discriminatory practice for an employer to: (i) engage in unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature to a domestic worker; (ii) subject a domestic worker to unwelcome harassment based on sex, sexual orientation, gender identity, race, color, age, religion, national origin or disability; or (iii) refuse job-protected leave for the birth or adoption of a child by the domestic worker or a spouse.
  
  
  • This Act is enforced by the Massachusetts Commission Against Discrimination.

• 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).
    
    
• 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).

• Massachusetts Sexual Harassment Statute (M.G.L.c. 214, s. 1C)


• This statute prohibits sexual harassment.

• 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.

• 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)
      
    
    
  • 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.
      
      
  • 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)
      
    
    
  • "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.
      
      
  • 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 Orientation
  
  • Under Massachusetts law an employer cannot discriminate on the basis of sexual preference.