Anti-Discrimination Law in Massachusetts

Massachusetts’ anti-discrimination law prohibits discrimination based on sexual orientation, gender identity or expression (currently excluding public accommodations) and HIV status.

Questions & Answers (Accurate as of February 11, 2014)

Does Massachusetts have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination?

Yes. In 1989, Massachusetts became the second state in the country to pass a comprehensive anti-discrimination law prohibiting sexual orientation discrimination in the areas of employment, housing, public accommodations, credit and services1. There are also other areas (e.g. education and insurance) where there are prohibitions of sexual orientation discrimination.

Does it also protect people perceived of as gay, lesbian, and bisexual?

Yes. The non-discrimination law defines “sexual orientation” as “having an orientation for or being identified as having an orientation for heterosexuality, bisexuality or homosexuality.”2 The language of “being identified as” has been interpreted to mean that, for example, if a person is fired because they are perceived to be gay (whether they are or not), they may still invoke the protection of the anti-discrimination law to challenge the firing.

Does it also protect people associated with gay, lesbian, and bisexual individuals?

Most likely, yes.3 Also, in some situations, if a person is fired from a job or evicted from their home because they hang out with someone who is gay or lesbian, it may be possible to show that they were fired or evicted because the employer or landlord thought they, too, were gay or lesbian.

Does Massachusetts have anti-discrimination laws that protect transgender people?

Yes, in November 2011, the Massachusetts legislature enacted a law, An Act Relative to Gender Identity,4 that was signed by the Governor and will go into effect on July 1, 2012.  This law prohibits discrimination in several key areas and defines gender identity as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” 

The law also includes ways for a person to show proof of his/her gender identity “including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of a person’s core identity . . .”

For further information see GLAD publication, Massachusetts’ Transgender Rights Law: An Act Relative to Gender Identity, at www.glad.org/uploads/docs/publications/ma-trans-rights-law.pdf.

What kinds of discrimination does the anti-discrimination law address?

The Massachusetts law prohibits discrimination in

  • EMPLOYMENT
  • PLACES OF PUBLIC ACCOMMODATION (however, there is no explicit protection for gender identity)
  • HOUSING
  • CREDIT
  • SERVICES

Employment

Who does the non-discrimination law apply to and what does it forbid?

The non-discrimination law applies to employers (government based or private) who have at least 6 employees (not including the owner or certain family members). It forbids employers from refusing to hire a person, or discharging them, or discriminating against them “in compensation, or in terms, conditions or privileges of employment” because of sexual orientation or gender identity.5  This covers most significant job actions, such as hiring, firing, failure to promote, demotion, excessive discipline, harassment and different treatment of the employee and similarly situated co-workers.

The law also applies to employment agencies and labor organizations (e.g. unions).6

Example: after employer saw a male employee reading a gay newspaper, employer told him not to bring in “pornographic materials” and then disciplined the employee for making personal phone calls (but not others who made phone calls) and berated him for hanging out with his friends (although the meeting was work-related). When employee confronted employer for referring to him to another employee as a “faggot,” employee was fired. Discrimination was found and the employee was awarded damages.7

Example: where employee’s supervisor ridiculed employee as “pipe smoker” and “lollipop licker,” employee awarded damages for harassment.8

Example: where a gay male county corrections officer suffered persistent rumors in the workplace concerning his sexual orientation, slurs and shunning at work, undesirable work assignments and unsuccessful internal administrative remedies, a jury awarded him compensatory and punitive damages of $623,000 plus interest and attorney’s fees as the result of this harassment.9

Are any companies exempt from the anti-discrimination law?

Employers with fewer than six employees are exempt.

An employer, agency or labor organization may defend against a discrimination claim by arguing that a “bona fide occupational qualification” of the particular job is that it have someone in it who is non-LGBT. But there are no general occupational exemptions from the reach of the non-discrimination law. While that defense is allowed in the law, it is strictly applied and very rarely successful.10

Religious institutions and their charitable and educational associations are sometimes exempt from the law.11 Where an employer is operated or supervised by a religious institution, it may preferentially hire members of its own religion, and may take employment actions that it “calculate[s will] ... promote the religious principles for which it is established or maintained.” This exemption, however, is not a carte blanche for an employer to use his or her religious beliefs as a justification for discriminating against an LGBT person.12

Does the Massachusetts law prohibit sexual harassment?

Yes. Sexual harassment is specifically prohibited under the law. Massachusetts law defines “sexual harassment” as:

“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; (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. Discrimination on the basis of sex shall include, but not be limited to, sexual harassment.” 13

A claim of harassment can be pursued under Mass. Gen. Laws, chap. 151B, sec. 4 (16A).14 For employers who are not large enough to be subject to the jurisdiction of the Massachusetts Commission Against Discrimination (fewer than 6 employees), claims may be brought directly in court under Mass. Gen. Laws, chap. 214, sec. 1C. 15

It is as unlawful to sexually harass a gay, lesbian or bisexual person as it is to harass a non-gay person. Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation. Other harassment is sexual in nature and more appropriately categorized as “sexual harassment.”  Both types of harassment can happen to the same person, and both are forbidden.16

Both the United States Supreme Court and several state courts have found same-sex sexual harassment to violate sexual harassment laws.17

Public Accommodations

 

What is a “place of public accommodation”?

A place that holds itself open to, and accepts the patronage of the general public is a place of public accommodation subject to the non-discrimination laws.18 This definition is intentionally broad and may include a motel, restaurant, rest area, highway or hospital, as just a few examples.

What does the law say about discrimination in places of public accommodation?

Such places may not discriminate, or make any distinctions, or impose any restrictions because of a person’s sexual orientation. “[W]hoever aides or incites” such discriminatory treatment may also be penalized under the law.19

Example: women, who were attacked by a used car dealer when he realized they were lesbians, stated a claim under the law and were awarded damages in a settlement.

Example: two women who kissed on a bus and were then forced off of the bus by the driver were protected by the law because the driver did not order off of the bus a heterosexual couple who were kissing were awarded damages.20

Example: couples who were forcibly ejected from a night club because customers were uncomfortable with their being physically affectionate were awarded damages.21

What protections exist for transgender people in places of public accommodation?

Although the new transgender rights law does not contain explicit protections for gender identity, in many cases a transgender person may have a claim of sex discrimination if the adverse action is triggered by the sense that the individual does not meet the expectations of or act like a “real man” or “real woman,” then this can be the basis for a sex stereotyping claim.22 

In some cases an individual’s gender identity may be regarded as “a gay issue” by the person or entity perpetrating the discrimination and therefore allow a person to bring a sexual orientation claim. 

In Jette v. Honey Farms,23  MCAD ruled that, unlike the federal disability laws, Massachusetts’ disability law includes transgender people.

So a transgender person who is discriminated against in a public accommodation has protections under the law, but since gender identity is not one of the explicit protected classes, the person will need to find another protected characteristic (e.g. sex, sexual orientation or disability) to use in filing the complaint.

  The transgender coalition to which GLAD belongs will continue to work for the express inclusion of “gender identity” in the public accommodations anti-discrimination law.

 

Housing

What is prohibited by the housing anti-discrimination law in Massachusetts?

The housing laws are intended to prohibit discrimination by those engaged in most aspects of the business of listing, buying, selling, renting or financing housing, whether for profit or not. 24  Most often, these claims involve a refusal by an owner, landlord or real estate broker to sell, or lease, or even negotiate with a person about the housing they desire to obtain. 25 But other practices are forbidden, too, such as inquiring into or making a record of a person’s sexual orientation or gender identity or marital status26;  or discriminating with respect to mortgage loans.27

Are any landlords exempt from the housing anti-discrimination law?

The main exemption from the law is for owner-occupied buildings that have two units or less. The law is focused on protecting people in “multiple dwelling[s].”  This is a dwelling which is usually occupied for permanent residence and which is either rented, leased, let or hired out, to be occupied as the residence or home of three or more families living independently of each other. If the building only has two apartments and the owner lives in one of them, the exemption may apply.28 The other exemptions in this area of the law are fairly technical and relate to the definitions of “housing development,” “contiguously located housing,” and “other covered housing accommodations.”

Credit and Services

What protections exist under Massachusetts anti-discrimination law with regard to credit?

Any person who furnishes credit, such as a bank, credit union, or other financial institution, may not “deny or terminate such credit ... or ... adversely affect an individual’s credit” because of sexual orientation or gender identity or marital status.29

Example: GLAD brought and settled a claim against a bank which refused to allow two men to apply jointly for a loan, claiming it was both sexual orientation and martial status discrimination;

Example: GLAD brought and settled a claim against a credit union which refused to allow a feminine appearing man from applying for a loan until he came back looking more masculine. A federal court ruled that this stated a claim of sex discrimination in violation of the credit non-discrimination laws.30

How does Massachusetts anti-discrimination law protect people receiving services?

Any person who furnishes services may not “deny or terminate such ... services” because of sexual orientation or gender identity or marital status.31 While many of those businesses which furnish services will be subject to the public accommodations law, this provision also captures those who do not, including those in the business of insurance.

Pursuing a Complaint

How do I file a complaint of discrimination under Massachusetts law?

You may file in person or in writing at the Massachusetts Commission Against Discrimination (MCAD). The MCAD prefers for people to file in person, unless an attorney has prepared the complaint for them. Call in advance to set up an appointment and find out what you need to bring.

Boston: (617) 994-6000, One Ashburton Place, Room 601.

Springfield: (413) 739-2145.

Worcester: (508) 799-8010.

The complaint must be under oath, state the name and address of the individual making the complaint as well as the name and address of the entity he or she is complaining against (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.

Do I need a lawyer?

No. The process is designed to allow people to represent themselves. However, GLAD strongly encourages people to find lawyers to represent them throughout the process. Not only are there many legal rules governing the MCAD process, but employers and other defendants are likely to have legal representation.

What are the deadlines for filing a complaint of discrimination?

Complaints of discrimination must be filed at the MCAD within 300 days of the last discriminatory act or acts. There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

What happens after a complaint is filed with the MCAD?

The MCAD assigns an investigator to look into your case. The parties may engage in limited “discovery”—a legal process which allows the other side to examine the basis of your claim and allows you to examine their justifications and defenses. This is conducted through written questions (interrogatories), requests for documents, and depositions. Ultimately, if the case is not dismissed for technical reasons, a Commissioner will decide if there is probable cause to credit your allegations.

If probable cause is found in an employment, credit, services, or public accommodations case, the case will be sent for “conciliation” or settlement proceedings. If negotiations fail to produce a settlement agreeable to all parties, the case proceeds further with more discovery and possibly a trial type hearing.

Even before probable cause is determined in a housing case, the MCAD may go to court to seek an order forbidding the respondent from selling, renting or otherwise disposing of the property at issue while the case is pending. Once probable cause is found, the respondent must be notified of its right to have its case heard in court rather than at the MCAD.32

If probable cause is found lacking, the case is over unless you appeal the “lack of probable cause” finding. There are special rules and time constraints on appeals within the MCAD that must be observed strictly.

What are the legal remedies the MCAD may award for discrimination if an individual wins his or her case there?

The remedies for a successful complainant may include, for employment cases, hiring, reinstatement or upgrading, backpay, restoration in a labor organization, and front pay. In housing cases, remedies may include damages (expenses actually incurred because of unlawful action related to moving, storage, obtaining alternate housing) and civil fines to be paid to the state. In public accommodations cases, the MCAD may also order civil fines to be paid to the state. In all cases, the remedies may also include emotional distress damages, attorneys’ fees, cease and desist orders, and other relief that would fulfill the purposes of the anti-discrimination laws (e.g. training programs, posting of notices, allowing person to apply for credit on non-discriminatory terms, allowing person non-discriminatory access to and use of services).

Can I also file a complaint a discrimination complaint with a federal agency?

Yes, in many cases.  Federal employment non-discrimination law, called Title VII, applies only to employers with at least 15 employees, and complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC).  But if you initially institute your complaint with MCAD and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after MCAD has terminated the case.33 (People who work for federal agencies are beyond the scope of this publication.)

Someone who brings a claim of discrimination may sometimes pursue protections under both state and federal law.  This is true because there may be overlapping provisions of state and federal law.   For example, Title VII forbids employment discrimination based on race, sex, age, religion and disability (which includes HIV status), but does not expressly forbid discrimination based on “sexual orientation” or “gender identity.” 

Because a growing number of courts and government agencies have recognized that the root of sexual orientation and gender identity discrimination is sex discrimination, the federal EEOC has recently indicated that it will accept both “gender identity” and “sexual orientation” discrimination complaints in order to investigate whether the complainant may have experienced prohibited “sex” discrimination. 

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with MCAD first but keep in mind the possibility of pursuing a federal claim as well.  If you have a sexual orientation or gender identity complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that MCAD cross-file your complaint with the EEOC.

LGBT people who are discriminated against in housing may also be able to file a complaint with the federal Department of Housing and Urban Development (HUD) in addition to MCAD.  For more information go to:    http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_Housing_Discrimination.

[1] United States Code 42 sec. 2000e-5(e)(1).

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

  1. Union:  If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union steward about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of their fair representation.
  2. Local Agencies: Several cities and towns have their own local non-discrimination laws and agencies with which you can file a complaint in addition to filing at the MCAD. Sometimes the MCAD allows the local agency to investigate the case instead of the MCAD, which might produce advantages in time and accessibility of staff. Cambridge and Boston have the most developed local agencies, although Newton, Somerville, Worcester and Springfield also have some staff for certain kinds of complaints. Even if you file with the local agency, you must still file with the MCAD within 300 days of the last act of discrimination in order for your case to be processed at all.
  3. State or Federal Court: After filing with the MCAD or EEOC, or both, as discussed above, a person may decide to remove his or her discrimination case from those agencies and file the case in court. There are rules about when and how this must be done. 34

In addition, a person may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if a person is fired in violation of a contract, or fired without the progressive discipline promised in a handbook, or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. If a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord evicts me because I filed a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee could file an additional complaint against the employer or the tenant against the landlord for retaliation. “Retaliation” protections cover those who participate in proceedings, oppose unlawful conduct, or state an objection to discriminatory conduct.35

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers by live chat or email at http://www.GLADAnswers.org or by phone at 800-455-4523 (GLAD) any weekday between 1:30 and 4:30 p.m. to discuss options.

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they will be able to handle those possible consequences. Of course, even if a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice, which should be made after gathering the information and advice to make an informed choice.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them). Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes. The state non-discrimination laws for employment forbid taking an action against someone because of sexual orientation or gender identity as well as race, color, religious creed, national origin, sex, ancestry, age, disability or membership in a uniformed military service of the U.S., including the National Guard. In housing, the criteria are expanded to include marital status, or because the person is a veteran. In public accommodations, gender identity, marital status and age are not included among the law’s protections.

Footnotes

1 See generally Mass. Gen. Laws, chap. 151B
2 Mass. Gen. Laws, chap. 151B, section 3(6).
3 See http://www.mass.gov/mcad/documents/SJC%20Decides%20Associational%20Discrimination%20Claim.pdf.
4 See http://www.malegislature.gov/Bills/187/House/H03810.
5 Mass. Gen. Laws, chap. 151B, sec. 4(1).
6 Mass. Gen. Laws, chap. 151B, secs. 4(3), 4(2).
7 Fijal v. Kentucky Fried Chicken/JTN Food Serv., Inc. 20 M.D.L.R. 45 (1998).
8 Magane v. Corcoran Management Co., 18 M.D.L.R. 103 (1996).
9 Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 855 N.E. 2d 777 (2006).
10 See, e.g. Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 447 N.E.2d 1228 (1983).
11 Mass. Gen. Laws, chap. 151B, section 1(5). 
12 See, e.g., Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233 (1994)(housing case).
13 Mass. Gen. Laws, chap. 151B, sec. 1 (18).
14 Making it unlawful “for an employer, personally or through his agents, to sexually harass any employee.”
15 Setting forth right to be free from sexual harassment.
16 Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 855 N.E. 2d 777 (2006).
17 Compare Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S.Ct. 998 (1998)(man can sue for sexual harassment by other men under federal sexual harassment laws); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 676 N.E.2d 45 (1997)(same-sex sexual harassment forbidden under state law).
18 Mass. Gen. Laws, chap. 272, sec. 92A.
19 Mass. Gen. Laws, chap. 272, sec. 98.
20 Rome v. Transit Express, 19 Mass. Discrim. Law Rptr. (M.D.L.R.) 159 (1997), affirmed, 22 M.D.L.R. 88 (2000);
21 Stoll et al. v. State Street Stock Exchange, Inc., 18 M.D.L.R. 141 (1996).
22 See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989); Rosa v. Park West Bank,  214 F.3d 213 (1st Cir. 2000);
Millett v. Lutco, Inc., 23 M.D.L.R. 231 (2001)
23 Jette v. Honey Farms, 2001 WL 1602799.
24 Mass. Gen. Laws, chapter 151B, sec. 4 (3B, 3C, 6, 7).
25 Mass. Gen. Laws, chap. 151B, sec. 4 (6)(a)(public housing), sec. 7 (private housing).
26 Mass. Gen. Laws, chap. 151B, sec. 4(6)(c)(public housing), sec. 4(7)(private housing).
27 Mass. Gen. Laws, chap. 151B, sec. 4(3B).
28 Mass. Gen. Laws, chap. 151B, sec. 1 (11).
29 Mass. Gen. Laws, chap. 151B, sec. 4(14).
30 Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000).
31 Mass. Gen. Laws,  chap. 151B, sec. 4(14).
32 Mass. Gen. Laws, chap. 151B, sec. 5.
33 United States Code 42 sec. 2000e-5(e)(1).
34 See e.g., Mass. Gen. Laws, chap. 151B, sec. 9.
35 Mass. Gen. Laws, chap. 151B, secs. 4(4), 4A.  See also Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998)(upholding federal retaliation claim of gay man).