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, 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. In Theidon v. Harvard University, No. 18-1279 (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.
  
  
  • 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.
  
  
  • 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.
  
  
  • 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 also 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 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
  
  
  • 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.
      
      
  • "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.
      
      
  • 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.
    
  
  
• Affirmative Action
  
  • Massachusetts Executive Order 227
    
    • Contractors with the Commonwealth with contracts for over $50,000.00 must have affirmative action programs.

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