Discrimination | Transgender Rights | Massachusetts
Does Massachusetts have an anti-discrimination law protecting transgender individuals from discrimination?
Yes. Since 1990, Massachusetts has prohibited discrimination based on sexual orientation in public and private employment, housing, public accommodations, credit, and services (see generally Mass. Gen. Laws, chap. 151B). Other areas of the law (e.g. education and insurance) also prohibit discrimination based on sexual orientation.
Recently, these laws have been extended to protect transgender people. In 2011, Governor Deval Patrick signed a historic executive order prohibiting discrimination based on gender identity and expression in state employment (Mass. Exec. Order. No. 526 (Feb. 17, 2011), MA Executive Order 526). In 2012, Massachusetts amended its anti-discrimination laws to prohibit discrimination based on gender identity in public and private employment, housing, credit, education, and services—but not public accommodations. Finally, in 2016, Massachusetts passed the long-awaited transgender public accommodations bill, protecting transgender people from discrimination in restaurants, libraries, hotels, malls, public transportation, and beyond (Mass. Gen. Laws, chap. 272, secs. 92A, 98). For further information about the bill, see GLAD’s MA Public Accommodations Q&A, at https://www.glad.org/current/post/ma-public-accommodations-q-a.
Do the laws also protect people perceived to be transgender?
Yes. Massachusetts non-discrimination law defines “sexual orientation” as “having an orientation for or being identified as having an orientation for heterosexuality, bisexuality or homosexuality” (Mass. Gen. Laws, chap. 151B, sec. 3(6)). This language has been interpreted to include discrimination based on perception. For example, if a person is fired because they are perceived to be gay, they may invoke the protection of the anti-discrimination law regardless of their actual orientation.
While the law does not explicitly define “gender identity,” it likely also encompasses discrimination based on perception. If an individual is discriminated against because they are perceived to be transgender, the law should protect them.
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 (“the complainant’) as well as the name and address of the entity he or she is complaining against (“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 (Mass. Gen. Laws, chap. 151B, sec. 5).
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 their 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, or obtaining alternate housing) and civil fines to be paid to the state. In public accommodations cases, the MCAD may 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 nondiscriminatory 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 to employers with at least 15 employees. Complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). However, 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 (United States Code 42 sec. 2000e-5(e)(1)). (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.”
Recently, however, a growing number of courts and government agencies have taken the position that Title VII’s proscription against sex discrimination encompasses discrimination on the basis of sexual orientation or gender identity (See, e.g., United States & Dr. Rachel Tudor v. Southeastern Oklahoma State University, 2015 U.S. Dist. LEXIS 89547 (2015) (denying motion to dismiss professor’s Title VII complaint that school had subjected her to a hostile work environment based on her gender identity)). In two separate decisions in 2012 and 2016, the EEOC itself concluded that sexual orientation discrimination, gender identity discrimination, and sex discrimination are one and the same, since the latter two are based on preferences, assumptions, expectations, stereotypes, and norms associated with masculinity and femininity (See Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012); Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015)). Although the EEOC’s decisions are not binding on the courts, many have used similar reasoning in affirming Title VII’s applicability to discrimination based on gender identity and sexual orientation (See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding that Title VII prohibits discrimination against transgender people based on gender stereotyping); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (holding “sexual orientation discrimination is a form of sex or gender 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_housin g_equal_opp/LGBT_Housing_Discrimination.
Are there other options for filing a complaint for discrimination?
Possibly yes, depending on the facts of your particular situation.
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.
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.
State or Federal Court: After filing with the MCAD or EEOC, or both, as discussed above, a person may decide to remove their discrimination case from those agencies and file the case in court. There are rules about when and how this must be done (See e.g., Mass. Gen. Laws, chap. 151B, sec. 9).
In addition, you may wish to file a court case to address other claims which cannot be appropriately handled by discrimination agencies. For example, if you are 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, these matters are beyond the scope of what the agencies can investigate and instead the matter should be pursued in court. Similarly, if your claim involves a violation of constitutional rights—for instance, if you are a teacher or governmental employee who believes your free speech or equal protection rights were violated—then those matters must also be heard in court.
Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am transgender and Latina?
Yes. The state non-discrimination laws for employment forbid discriminating 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, however, marital status and age are not included among the law’s protections.
What can I do if my employer fires me or my landlord evicts me because I filed a complaint of discrimination?
It is illegal for your employer or landlord to retaliate or punish you because you filed a complaint. If they do so, you can file an additional complaint against them for retaliation. “Retaliation” protections cover those who participate in proceedings, oppose unlawful conduct, or state an objection to discriminatory conduct (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)).
What can I do to prepare myself before filing a complaint of discrimination?
Contact GLAD Answers at www.GLADAnswers.org or by phone at 1-800-455-4523 (GLAD) any weekday 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, they may decide it is not worth it to pursue a discrimination claim. This is an individual choice, which should be made after gathering enough information and advice to make an informed decision.
Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened, 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, as well as 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.
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