Youth | Employment | Massachusetts

Yes. Since 1990, Massachusetts has prohibited discrimination based on sexual orientation in public and private employment, housing, public accommodations, credit, and services (visit 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). Find further information about the bill, GLAD’s MA Public Accommodations Q&A, here.

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.

Similarly, the law 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… (Mass. Gen. Laws, chap. 4, sec. 7(59) (emphasis added)).

The non-discrimination law applies to public or private employers who have at least 6 employees (not including the owner or certain family members). It forbids employers from refusing to hire a person, discharging them, discriminating against them “in compensation, or in terms, conditions or privileges of employment” because of sexual orientation or gender identity (Mass. Gen. Laws, chap. 151B, sec. 4(1)). 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) (Mass. Gen. Laws, chap. 151B, secs. 4(3), 4(2)).

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 (Fijal v. Kentucky Fried Chicken/JTN Food Serv., Inc. 20 M.D.L.R. 45 (1998)).

Example: where employee’s supervisor ridiculed employee as “pipe smoker” and “lollipop licker,” employee awarded damages for harassment (Magane v. Corcoran Management Co., 18 M.D.L.R. 103 (1996)).

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 (Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 855 N.E. 2d 777 (2006)).

Employers with fewer than six employees are exempt.

Similarly, an employer, agency, or labor organization may defend against a discrimination claim by arguing that it is a “bona fide occupational qualification” of the particular job to have a non-LGBTQ+ employee fill it. Luckily, although this defense is technically allowed by law, it is strictly applied and very rarely successful (e.g. Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 447 N.E.2d 1228 (1983)).

Religious institutions and their charitable and educational associations are sometimes exempt from the law (Mass. Gen. Laws, chap. 151B, sec. 1(5)).  If a business is operated or supervised by a religious institution, it may preferentially hire members of its own religion, and may make employment decisions that  “promote the religious principles for which it is established or maintained” (Id.) However, in a Massachusetts Superior Court decision brought by GLAD, Barret v. Fontbonne Academy (33 Mass. L. Rep. 287 (Mass. Super. Ct. 2015)), the court held that this exemption is only available to religious employers who explicitly limit admission or employment to members of their religion. Thus, unless a religious employer specifically restricts hiring or admission, it is not exempt from the law.

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

“[S]exual 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” (Mass. Gen. Laws, chap. 151B, sec. 1 (18)).

A claim of harassment can be pursued under Mass. Gen. Laws, chap. 151B, sec. 4 (16A) (Making it unlawful “for an employer, personally or through his agents, to sexually harass any employee”). 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 (setting forth right to be free from sexual harassment).

It is just as unlawful to sexually harass an LGBTQ+ individual as it is to harass anyone else. Some harassment is specifically anti-LGBTQ+, and may be more fairly characterized as harassment on the basis of sexual orientation or gender identity. 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 (Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 855 N.E. 2d 777 (2006)).

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