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.
  
  
  • 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 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.
  
  
  • 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).
  
  
  • 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)) See also Brown v. F.L. Roberts & Co., Inc., 452 Mass. 674 (2008) 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))
  
  
  • 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.
  
  
  • 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 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.
  
  
  • It is 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. However, (i) if a prospective employee has voluntarily disclosed such information, a prospective employer may confirm prior wages or salary or permit a prospective employee to confirm prior wages or salary; and (ii) a prospective employer may seek or confirm a prospective employee's wage or salary history after an offer of employment with compensation has been negotiated and made to the prospective employee. (M.G.L. c. 149, s. 105A(c)(1) & (2))
  
  
  • It is unlawful to discharge or in any other manner retaliate against any employee because the employee: (i) opposed any act or practice made unlawful by this statute; (ii) made or indicated an intent to make a complaint or has otherwise caused to be instituted any proceeding under this statute; (iii) testified or is about to testify, assist or participate in any manner in an investigation or proceeding under this statute; or (iv) disclosed the employee's wages or has inquired about or discussed the wages of any other employee. (M.G.L. c. 149, s. 105A(c)(3))
  
  
  • The statute of limitations under this statute for filing a court complaint is 3 years. (M.G.L. c. 149, s. 105A(b))
  
  

• 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.