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EEO - Discrimination: Massachusetts

EEO - Discrimination requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Daniel J. Blake, Justin M. Sheldon, LeClairRyan

Summary

Discrimination Under the Massachusetts Fair Employment Practices Law

Governing Law and Investigatory Agencies

In Massachusetts, state law claims for discrimination fall under the Fair Employment Practices Act. Discrimination occurs when an employer, or its agent, takes any of the following actions based on an individual's membership in a protected class:

  • Refusing to hire or employ an individual;
  • Discharging an individual from employment; or
  • Discriminating against an individual in compensation or terms, conditions, or privilege of employment.

Under Massachusetts law, the following are protected classes:

  • Race;
  • Color;
  • Religious creed;
  • National origin;
  • Sex (including pregnancy, childbirth, and related medical conditions);
  • Sexual orientation;
  • Age;
  • Ancestry;
  • Qualified handicap;
  • Gender identity;
  • Military status; or
  • Veteran status.

+ALM GL ch. 151B, § 4; +804 CMR § 3.01.

Discrimination also includes requiring an individual to violate or forego the practices of his creed or religion. +ALM GL ch. 151B, §§ 4 (1) et seq.

Boston has local requirements pertaining to discrimination. See Local Requirements.

Employers

The Fair Employment Practices Act defines an employer as any organization, other than a private social club or nonprofit fraternal organization that employs six or more individuals. The Commonwealth and all of its political subdivisions, boards, departments, and commissions are also considered employers.

Bona Fide Occupational Qualification

The Fair Employment Practices Act applies to all discriminatory employment actions unless such actions are based upon a bona fide occupational qualification (BFOQ).

The term bona fide occupational qualification is not defined in the law. The Massachusetts Commission Against Discrimination (MCAD), however, provides some guidance as to the meaning and provides that stereotypical views regarding categories of people will never be a BFOQ; and customer or co-worker preference is not a BFOQ unless the preference deals with race/gender in the theater, or gender in jobs dealing with privacy, such as washroom attendant.

Individual Liability

Massachusetts imposes liability on individuals for violating Fair Employment Practices Act. +ALM GL ch. 151B, § 4 (4A); +ALM GL ch. 151B, § 4 (5).

Subsection 4A makes it unlawful for an individual to interfere with the rights granted to another person under the Fair Employment Practices Act.

Subsection 5 makes it unlawful to aid or abet another who interferes with the rights granted to individuals under the Fair Employment Practices Act.

Massachusetts Commission Against Discrimination

The Massachusetts Commission Against Discrimination (MCAD) investigates complaints for violation of Fair Employment Practices Act. A person alleging violation, must file a complaint with MCAD, he or she is not permitted to file a complaint in court until he or she has exhausted their administrative options.

All complaints must be filed within 300 days of the alleged violation and must be in writing. Complaints may be submitted by the person alleging discrimination or his or her attorney, the Attorney General or MCAD.

Once a complaint is filed, a commissioner and his or her staff investigate the complaint. If they decide there is no probable cause, the complaint is dismissed and the party filing the complaint is notified.

If the commissioner finds there is probable cause, MCAD informs the filing party that they may elect to proceed to a judicial determination or a hearing before MCAD. If the filing party proceeds with a judicial determination, MCAD closes its inquiry and the complaining party is barred from filing a complaint on the same matter in the future.

The Fair Employment Practices Act provides for the following remedies: hiring, reinstatement, promotion, back pay, and legal fees.

Required Posting

As mandated by the Massachusetts Commission Against Discrimination, all Massachusetts employers must post the Massachusetts Fair Employment Law Poster.

Protected Classes Under Massachusetts Law

The Fair Employment Practices Act includes the protected classes provided by federal law as well as several additional groups including sexual orientation and gender identity.

Disability

The Fair Employment Practices Act defines handicapped person as any person who:

  • Has a physical or mental impairment which substantially limits one or more major life activities;
  • Has a record of such impairment; or
  • Is regarded as having such impairment. +ALM GL ch. 151B, § 1(17).
Conditions Considered Disabilities

Several conditions are deemed disabilities under Massachusetts law that are not classified as such under federal law such as:

  • Certain illnesses may be considered disabilities, such as AIDS, tuberculosis, and hepatitis;
  • Alcoholism is a disability; and
  • Past drug addiction is a disability, but current illegal drug use is not a protected disability.

Massachusetts Parental Leave Act (MPLA) provides up to 8 weeks unpaid maternity leave for female employees. In the event of a pregnancy or child-birth related disability, these 8 weeks of unpaid leave can be in additional to the 12 weeks provided for by the federal Family Medical Leave Act (FMLA).

Religion

The Massachusetts Fair Employment Practices Law makes it unlawful for an employer to require an individual to violate, or forego the practice of his or her creed or religion which includes the observance of any particular day, days, or portion thereof, as a Sabbath or holy day. +ALM GL ch. 151B, § 4 (1A).

Age

There are three sources of law in Massachusetts that prohibit employers from discriminating against persons age 40 and above:

+ALM GL ch. 149, § 24A - the age discrimination law - make it unlawful to discriminate against persons age 40 and over in employment situations and provides for a process of investigation, fines for violating the statute, and various requirements employers must comply with.

The Department of Labor and Industries and the Commission of Labor and Industries have the power to investigate complaints of age discrimination. The Department and Commissioner are not given power to initiate an investigation by the statute, and therefore are only permitted to investigate complaints.

+ALM GL ch. 149, § 24D requires employers to keep true and accurate records of all of its employees.

The maximum fine for violating +ALM GL ch. 149, § 24A - unlawful termination based on age - is $500 and may be accompanied with publication of the employer's name for violation of the statute.

The Massachusetts courts have repeatedly refused to allow persons alleging they were terminated because of their age to sue for wrongful termination based an employer's violation of +ALM GL ch. 149, § 24A because "the public policy against age discrimination is already protected by a comprehensive legislative scheme, +ALM GL ch. 151B, § 4 ." See Ourfalian v. Aro Mfg. Co., Inc., +31 Mass. App. Ct. 294(1991).

Massachusetts law prohibits forced retirement unless age is a BFOQ, a very high standard in a mandatory retirement circumstance. Massachusetts law specifically prohibits employment contracts that require individuals over 40 years old to retire unless the individual is 65 years old and was an executive or in a high policymaking position for the two years immediately preceding their retirement if they are entitled to future compensation totaling $44,000/year. +ALM GL ch. 149, § 24D

Sex and Sexual Orientation

Under the Massachusetts Fair Employment Practices Act, sex discrimination includes discrimination against women based on pregnancy, childbirth or related medical conditions. Additionally, sexual orientation is a protected class.

On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.

Gender Identity

Gender identity is a protected class in Massachusetts. Gender identity is defined broadly as "a person's gender related identity, appearance or behavior, whether or not that that gender related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth." +ALM GL ch. 151B, § 4; +ALM GL ch. 151B, § 7.

Marital Status

Massachusetts prohibits employers from distinguishing between married and unmarried women where such a distinction is not made between unmarried and married men. +804 CMR § 3.01(4) (a) (5).

Pregnancy Protections

Amendments to Chapter 151B under the Massachusetts Pregnant Workers Fairness Act (MPWFA) prohibit a covered employer from:

  • Denying a reasonable accommodation for an employee's pregnancy or pregnancy-related condition, including lactation or the need to express milk for a nursing child, if requested, unless the employer can show that the accommodation would impose an undue hardship on its program, enterprise or business;
  • Taking adverse action against an employee who requests or uses a reasonable accommodation, including, but not limited to, failing to reinstate the employee to her original employment status or to an equivalent position with equivalent pay and benefits when the reasonable accommodation is no longer needed;
  • Denying an employment opportunity if the denial is based on the need of the employer to make a reasonable accommodation for the employee's pregnancy or pregnancy-related condition;
  • Requiring an employee to accept an accommodation that the employee chooses not to accept, if the accommodation is unnecessary to enable the employee to perform essential job functions;
  • Requiring an employee to take a leave of absence if another reasonable accommodation may be provided without undue hardship to the employer; or
  • Knowingly refusing to hire a person because of her pregnancy or pregnancy-related condition, where the applicant is capable of performing essential job functions with a reasonable accommodation, unless it would cause undue hardship to the employer.

Under the law, a reasonable accommodation includes, but is not limited to:

  • More frequent or longer paid or unpaid breaks;
  • Paid or unpaid time off to attend to a pregnancy complication or to recover from childbirth;
  • Acquisition or modification of equipment or seating;
  • Temporary transfer to a less-strenuous or less-hazardous position;
  • Job restructuring;
  • Light duty;
  • Private nonbathroom space for expressing breast milk;
  • Assistance with manual labor; and
  • Modified work schedule.

An employer is not required to terminate or transfer an employee with more seniority or to promote an employee who cannot perform essential job functions, with or without a reasonable accommodation.

An undue hardship means an action requiring significant difficulty or expense when considered in light of: the nature and cost of the accommodation; the overall financial resources of the employer; the overall size of business with respect to the number of employees and the number, type and location of the employer's facilities; and the effect on expenses and resources or other impact of the accommodation on the employer.

After the employee or applicant requests an accommodation, the employer and the individual must engage in the interactive process to determine an effective reasonable accommodation to allow the individual to perform essential job functions. The employer may require documentation about the need for a reasonable accommodation from a health care or rehabilitation professional. However, an employer may not request documentation for the following accommodations:

  • More frequent restroom, food or water breaks;
  • Seating;
  • Limits on lifting over 20 pounds; and
  • Private nonbathroom space for expressing breast milk.

Lactation/Breastfeeding Protections and Accommodations

A mother is permitted to breastfeed her child in any public place or establishment or place which is open to and accepts or solicits the patronage of the general public and where the mother and her child may otherwise lawfully be present. +Mass. Gen. Laws. Ch. 111 § 221.

A Massachusetts employer is required to provide more frequent or longer paid or unpaid breaks as well as private nonbathroom space for expressing breastmilk unless it would create an undue hardship for the employer. The Massachusetts Commission Against Discrimination issued FAQs clarifying portions of the law relating to breastfeeding accommodations. It specified that the law does not limit how often an employee may take a break to breastfeed or express milk, nor the length of time needed to do so, but that an employer must allow employees to do so as often as needed, absent undue hardship. Breaks may be paid or unpaid. However, an employer that provides paid breaks to employees must allow an employee to use them for breastfeeding or expressing milk. Rather than taking an unpaid break, an employee may continue working while expressing breast milk or breastfeeding where possible.

An employer must provide a private, nonbathroom space in which to breastfeed or express milk, such as a private room or office. The space should be free from intrusion and allow employees to comfortably express milk or breastfeed. For example, the space should include sufficient electrical outlets for breast pumps, tables or surfaces to hold the necessary items, and seating. Alternatively, if an employee's workspace is equivalent to a private, nonbathroom space, the employee may breastfeed or express milk in her workspace.

Notice to Employees Regarding Pregnancy and Breastfeeding Accommodations

An employer must provide its employees with written notice of the right to be free from discrimination related to pregnancy or a pregnancy-related condition, including lactation or the need to express breast milk for a nursing child, and the right to reasonable accommodations. Employers must provide notice in a handbook, pamphlet or by other means:

  • To current employees by April 1, 2018;
  • To new employees at or prior to the beginning of employment; and
  • Within 10 days after an employee discloses her pregnancy or pregnancy-related condition.

Genetic Testing

Chapter 151B prohibits an employer from discriminating against applicants and employees based on genetic information. An employer is prohibited from soliciting genetic information as a condition of employment, requiring or inducing any applicant to undergo a genetic test, or questioning a person about his or her genetic information or the genetic information of a family member.

+ALM GL ch. 151B § 4(19)

Specifically, it is unlawful for an employer to:

  • To base employment decisions on genetic information (such as hiring or firing);
  • To use the results of a genetic test or genetic information to affect the terms, conditions, compensation, or privileges of a person's employment;
  • To require or request genetic information as a condition of employment;
  • To offer an inducement to take a genetic test or disclose genetic information;
  • To question a person about previous genetic testing, or genetic information about themselves or family members; or
  • To seek, receive, or record genetic information.

Genetic information is defined as any written, recorded individually identifiable result of a genetic test. . . pertaining to the presence, absence, variation, alteration, or modification of a human gene or genes. +ALM GL ch. 151B § 1(22). A genetic test is defined as any tests of human DNA, RNA, mitochondrial DNA, chromosomes or proteins for the purpose of identifying genes or genetic abnormalities, or the presence or absence of inherited or acquired characteristics in genetic material.+ALM GL ch. 151B § 1(23).

Genetic Testing

Massachusetts law, like the federal law, prohibits employment decisions based on genetic testing. +ALM GL ch. 151B, § 4(19). Chapter 151B prohibits an employer from discriminating against applicants and employees based on genetic information. An employer is prohibited from soliciting genetic information as a condition of employment, requiring or inducing any applicant to undergo a genetic test, or questioning a person about his or her genetic information or the genetic information of a family member. +ALM GL ch. 151B, § 4(19).

Genetic information is defined as "any written, recorded individually identifiable result of a genetic test. . . pertaining to the presence, absence, variation, alteration, or modification of a human gene or genes." +ALM GL ch. 151B, § 1(22). A genetic test is defined as "any tests of human DNA, RNA, mitochondrial DNA, chromosomes or proteins for the purpose of identifying genes or genetic abnormalities, or the presence or absence of inherited or acquired characteristics in genetic material." +ALM GL ch. 151B, § 1(23).

HIV and AIDS Testing

State law also prohibits employers from requiring AIDS testing as a condition of employment because the Massachusetts courts have determined AIDS is a protected handicap. +ALM GL ch. 111, § 70F.

Military Status

An employer may not discriminate against an employee or applicant based on his or her military status. +ALM GL ch. 33, § 13. Massachusetts maintains a state counterpart to the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) law.

Veteran Status

Under the HOME Act (An Act Relative to Housing, Operations, Military Service, and Enrichment), an amendment to the Massachusetts Fair Employment Practices Law, veteran status is a protected category.

Accommodations

Disability Accommodations

An employer must reasonably accommodate an employee's disability unless such accommodation poses an undue hardship.

MCAD's Guidelines state that a reasonable accommodation is "any adjustment or modification to a job (or the way a job is done), employment practice, or work environment that makes it possible for a handicapped individual to perform the essential functions of the position involved and to enjoy equal terms, conditions and benefits of employment. "

To determine whether an accommodation poses an undue hardship on an employer, MCAD states three factors that may be considered:

  • The overall size of the employer's business with respect to the number of employees, number and type of facilities, and size of budget or available assets;
  • The type of the employer's operation, including the composition and structure of the employer's workforce; and
  • The nature and costs of the accommodation needed.

Medical Marijuana

Under the Humanitarian Medical Use of Marijuana Act, Massachusetts allows the use of medical marijuana by qualified registered users who have a debilitating medical condition. A debilitating medical condition is defined as:

  • Cancer;
  • Glaucoma;
  • Positive status for human immunodeficiency virus or acquired immune deficiency syndrome (AIDS);
  • Hepatitis C;
  • Amyotrophic lateral sclerosis (ALS);
  • Crohn's disease;
  • Parkinson's disease;
  • Multiple sclerosis;
  • Other conditions as determined in writing by a qualifying patient's physician.

+2012 Mass. ALS 369(2)(C).

A Massachusetts employer is not required to accommodate on-site medical use of marijuana in any place of employment. +2012 Mass. ALS 369(7)(D). However, allowing off-site use of medical marijuana might be a reasonable accommodation, even if an employee fails a drug test. In Barbuto v. Advantage Sales & Marketing LLC, +2017 Mass. LEXIS 504 (Mass. July 17, 2017), the Massachusetts Supreme Judicial Court ruled that an employee who was a qualified registered medical marijuana user and who was terminated for testing positive for marijuana could sue her employer for handicap discrimination under Chapter 151B.

While the use of medical marijuana may be legal under Massachusetts law, it is still a Schedule I substance under the Federal Controlled Substances Act and, therefore, illegal under federal law. The Barbuto court distinguished the employer's role under federal law and clarified that an employer would not violate federal law by permitting an employee to continue his or her off-site use of medical marijuana. Employers may follow federal law in prohibiting employee drug use on-site.

See Disabilities (ADA): Massachusetts.

Recreational Marijuana

On November 8, 2016, Massachusetts voters passed Question 4, legalizing the possession, use, and cultivation of limited amounts of marijuana. The law does not require employers to permit or accommodate the use or possession of marijuana in the workplace, and it does not impact an employer's authority to create and enforce workplace policies restricting the consumption of marijuana by employees.

Religious Accommodations

The Massachusetts Fair Employment Practices Law makes it unlawful for an employer to require an individual to violate, or forego the practice of his or her creed or religion which includes the observance of any particular day, days, or portion thereof, as a Sabbath or holy day. +ALM GL ch. 151B, § 4 (1A).

An employer must reasonably accommodate an employee's religious observances unless such accommodation poses an undue hardship. Examples of undue hardship are:

  • Inability to provide services which are required by federal or state law or regulation;
  • Situations which compromise public health and safety;
  • Inability to transact business without the employee's presence, where his or her work cannot be performed by another employee who has substantially similar qualifications during the period of absence; and
  • The employee's presence is needed to alleviate an emergency situation.

+804 CMR § 3.01 (7) (b) (3) (a).

The employer has the burden to demonstrate an accommodation is an undue hardship.

An employee has the burden of proof regarding practices that are required by his or her religion and the individual must demonstrate the religion requires observance of the Sabbath or holy day. +ALM GL ch. 151B, § 4 (1A).

Accommodations Based on Transgender Status

Massachusetts prohibits discrimination based on transgender status in in places of public accommodation such as restaurants, movie theaters, bars and hotels. Further, the law provides that any public accommodation offering goods, services or access to the public that that lawfully segregates or separates access to such public accommodations or other entities based on a person's sex shall grant all persons admission to and the full enjoyment of such public accommodation or other entity consistent with the person's gender identity. Thus, the law provides transgender individuals with the right to use public restrooms and locker rooms consistent with their gender identity regardless of their assigned sex at birth.

As this law was subject to a veto referendum, during the election on November 6, 2018, Massachusetts voters voted to uphold this law via a statewide referendum. +ALM GL ch. 272, § 92A; +ALM GL ch. 272, § 98.

Criminal Record

An employer is prohibited from basing employment decisions on certain aspects of an individual's criminal records. In fact, employers are strictly prohibited from asking about:

  • An arrest, detention, or disposition regarding a violation of the law where the individual was not convicted;
  • A first conviction for certain misdemeanors (i.e., drunkenness, simple assault, speeding, minor traffic violations, affray, disturbance of the peace); and
  • Any misdemeanor conviction where the conviction or time served was more than five years before the application for employment or request for information, unless the individual was convicted of any offense within the five years immediately preceding the application or request for information.

There are two exceptions to Massachusetts' prohibition on criminal record inquiry. An employer may inquire into an individual's criminal background if the applicant is applying for a position where federal or state law or regulation creates a mandate or presumptively disqualifies based on a conviction of a certain type of offense, or if the employer is subject to a federal or state law or regulation that obligates the employer to refrain from hiring individuals convicted of certain offenses. +Mass. Gen. Laws. Ch. 151B, § 4 (9 1/2).

Policy Against Sexual Harassment

Massachusetts law requires all employers to adopt a policy against sexual harassment which includes:

  • A statement that sexual harassment in the workplace is unlawful;
  • A statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of a complaint for sexual harassment;
  • A description and examples of sexual harassment;
  • A statement of the range of consequences for employees who are found to have committed sexual harassment;
  • A description of the process for filing internal complaints about sexual harassment and the work addresses and telephone numbers of the person or persons to whom complaints should be made; and
  • The identity of the appropriate state and federal employment discrimination enforcement agencies, and directions as to how to contact such agencies.

+ALM GL ch. 151B, § 3A; See Employee Management > EEO- Harassment: Massachusetts.

MCAD provides a Model Policy and Poster for employers. As mandated by the Massachusetts Commission Against Discrimination, all Massachusetts employers must post the Massachusetts Fair Employment Law Poster.

Massachusetts Equal Rights Act

The Massachusetts Equal Rights Act (MERA) states that any person in the Commonwealth, regardless of handicap or age - as those terms are defined by Fair Employment Practices Act- "have the same rights as other persons to make and enforce contracts, inherit, purchase, lease, sell, hold and convey real and personal property, sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property..." +ALM GL ch. 93, § 103(a).

The rights guaranteed by MERA include the right to enter into employment contracts. Any violation of MERA gives the individual who was denied their rights a private cause of action. +ALM GL ch. 93, § 103(b).

Equal Pay

Effective July 1, 2018, the Massachusetts Act to Establish Pay Equity, amends and strengthens the state equal pay law, the Massachusetts Equal Pay Act (MEPA). +2015 Bill Text MA S.B. 2119.

Requirements

The law prohibits an employer from discriminating in any way based on gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work. Comparable work is generally work that is substantially similar in that it requires substantially similar skill, effort, and responsibility and is performed under similar working conditions. A job title or job description alone shall not determine if jobs are comparable.

Exceptions

Wage differentials may be permissible if based upon:

  • A system that rewards seniority with the employer (provided, however, that time spent on leave due to a pregnancy-related condition and protected parental, family and medical leave, shall not reduce seniority);
  • A merit system;
  • A system measuring earnings by quantity or quality of production, sales, or revenue;
  • The geographic location in which a job is performed;
  • Education, training or experience (to the extent such factors are reasonably related to the particular job in question); or
  • Travel (if the travel is a regular and necessary condition of the particular job).

An employer paying a wage differential in violation of this law shall not reduce the wages of any employee solely in order to comply.

Discrimination and Retaliation Prohibited

An employer is prohibited from discharging, discriminating or retaliating against any employee because the employee:

  • Opposed any act or practice prohibited by this law;
  • Made or indicated an intent to make a complaint under this law;
  • Testified or is about to testify, assist or participate in any manner in an investigation or proceeding in connection with this law; or
  • Disclosed the employee's wages or has inquired about or discussed the wages of any other employee.

An employer may not contract with an employee to avoid its obligations under this law.  An employer may further prohibit a human resources employee, a supervisor, or any other employee whose job responsibilities require or allow access to other employees' compensation information, from disclosing such information without prior written consent from the employee whose information is sought or requested, unless the compensation information is a public record.

Self-Defense

An employer facing an equal pay complaint shall have an affirmative defense to liability and to any pay discrimination claim if within the previous 3 years and prior to the commencement of the action, the employer has:

  • Completed a self-evaluation of its pay practices in good faith; and
  • Can demonstrate that it made reasonable progress towards eliminating wage differentials based on gender for comparable work in accordance with that evaluation.

An employer's self-evaluation may be of the employer's own design, so long as it is reasonable in detail and scope in light of the size of the employer, or may be consistent with standard templates or forms issued by the Attorney General.

An employer who has completed a self-evaluation in good faith within the previous 3 years and prior to the commencement of the action, and can demonstrate that reasonable progress has been made towards eliminating wage differentials based on gender for comparable work in accordance with that evaluation, but cannot demonstrate that the evaluation was reasonable in detail and scope, shall not be entitled to an affirmative defense, but shall not be liable for liquidated damages.

Evidence of a self-evaluation or remedial steps shall not be admissible in any proceeding as evidence of a violation of this law that occurred prior to the date the self-evaluation was completed or that occurred either:

  • Within 6 months thereafter; or
  • Within 2 years thereafter if the employer can demonstrate that it has developed and begun implementing in good faith a plan to address any wage differentials based on gender for comparable work.

An employer who has not completed a self-evaluation shall not be subject to any negative or adverse inference as a result of not having completed a self-evaluation.

Damages and Enforcement

An employer who violates this law may be liable to an employee and the employee may recover:

  • The amount of unpaid wages;
  • An additional equal amount in liquidated damages; and
  • Reasonable attorneys' fees and costs.

The law provides for a private right of action by an individual in any court with jurisdiction by any one or more employees for and on their own behalf, or on behalf of other employees similarly situated. Individuals are not required to file a complaint with the Massachusetts Commission Against Discrimination before filing in court. Any agreement between the employer and any employee to work for less than the wage to which the employee is entitled is not a defense. An employee's previous wage or salary history shall not be a defense to an action.

Additionally, the Attorney General may bring a cause of action under the law to collect unpaid wages on behalf of one or more employees, as well as an additional equal amount of liquidated damages, together with the costs of the action and reasonable attorneys' fees.  Such costs and attorneys' fees shall be paid to the Commonwealth.  The Attorney General is not required to pay any filing fee or other cost in connection with such an action.

 

An action under this law shall be instituted within three years of an equal pay violation.

An equal pay violation occurs:

  • Each time a discriminatory compensation decision or other practice is adopted;
  • When an employee becomes subject to a discriminatory compensation decision or other practice; or
  • When an employee is affected by application of a discriminatory compensation decision or practice, including each time wages are paid, resulting in whole or in part from such a decision or practice.

Wage Disclosure

The law contains wage disclosure provisions and prohibits an employer from requiring as a condition of employment, that an employee refrain from inquiring about, discussing or disclosing information about either the employee's own wages, or about any other employee's wages.

An employer is not obligated to disclose an employee's wages to another employee or a third party.

Salary History Ban

The law prohibits an employer from seeking the wage or salary history of a prospective employee from the prospective employee or a current or former employer or requiring that a prospective employee's prior wage or salary history meet certain criteria.  There are some exceptions to this law.

  • 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
  • After an employment offer has been negotiated and made to the prospective employee, a prospective employer may seek or confirm a prospective employee's wage or salary history.

Guidance

The Office of the Attorney General released guidance and resources to assist employers in complying with the law.  These resources provide detailed guidance regarding:

  • Covered employers;
  • Covered employees;
  • The definitions of comparable work and wages;
  • Permissible variations in pay;
  • The prohibition on restricting wage discussions;
  • The salary history prohibition;
  • The prohibition on retaliation for engaging in any conduct deemed lawful under the law;
  • Liability and enforcement; and
  • The affirmative defense for employers conducting a self-evaluation.

The guidance also provides a guide for employers with respect to conducting a self-evaluation as well as a checklist of policies and practices to review.

Local Requirements

Boston Discrimination

Boston City Ordinance 12.9.3 prohibits employment discrimination in Boston.

The law prohibits an employer who employs seven or more employees within the City of Boston from directly or indirectly refusing to hire, refusing to employ, refusing to promote, unlawfully discharging, or discriminating against an individual in the terms, conditions, or privileges of employment (which includes compensation) based on a person's member in a protected class unless based on a bona fide occupational qualification.

Protected Classes

Under the Boston anti-discrimination law, an employer may not discriminate based on:

  • Race;
  • Color;
  • Sex;
  • Gender identity or expression - includes a person's actual or perceived gender; their gender related self-image, appearance, or expression whether or not it is the self-image, appearance, or expression traditionally associated with a person's sex at birth;
  • Age;
  • Religious creed;
  • Disability;
  • National origin;
  • Ancestry;
  • Sexual orientation - Actual or supposed homosexuality, heterosexuality, or bisexuality including orientation that may be presumed because of mannerisms, physical characteristics, manner dress or deportment;
  • Marital status -The actual condition of being single or being or having been married, separated or divorced;
  • Parental Status - Having a minor or disable child; or
  • Ex-offender status including being arrested detained or accused of violating the law; or conviction for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing the peace; or misdemeanor convictions older than five years, unless the individual has been convicted of any offense within the last five years.
  • Prior psychiatric treatment - Actual or supposed mental impairment caused by illness, injury, birth, professional treatment or hospitalization;
  • Military status - Being or having been in the military; or
  • Source of income - Manner or means by which a person supports themselves and their dependents, but it does not include income from any criminal activity.

The above list of protected classes is listed in the order in which they appear in the Ordinance and all definitions are taken from Boston City Ordinance 12-9.2. If there is no definition listed above, the Ordinance does not define the word.

Administrative Process

Boston City Ordinance 12-9.12 governs the procedures of filing, investigating and prosecuting a complaint. An individual claiming violation of the Boston Anti-Discrimination Ordinance must file a written complaint with the Boston Human Rights Commission (BHRC) within 180 days of the alleged discriminatory conduct.

The only time the BHRC will accept complaint later than 180 days after the discriminatory conduct is by referral from MCAD or the EEOC.

The written complaint must state the name and address of the person who committed the discriminatory conduct and set forth the details of the particular circumstances complained of. The BHRC cannot accept a complaint from anyone who has filed a complaint with the MCAD with respect to the same grievance.

Upon receipt of a complaint, the BHRC Executive Director conducts, or assigns someone else to conduct, a prompt investigation which must result in a written report being filed with the BHRC.

If the BHRC determines there is no probably cause, it directs the Executive Director to issue an order dismissing the allegations.

If it finds there is probable cause, the BHRC orders the Executive Director to attempt to eliminate the discrimination through persuasion, conciliation and negotiation.

If conciliation succeeds, the terms of the agreement must be put in writing and signed by or on behalf of the parties and the BHRC.

If conciliation is unsuccessful after thirty days, the Executive Director issues a written notice and a copy of the complaint on the alleged discriminator, requiring the respondent to answer the charges at a BHRC hearing.

If the hearing results in the BHRC finding no discrimination, the charge is dismissed. If the hearing results in a finding of discrimination, the BHRC creates a written report of its findings and recommendations that is delivered to the Mayor and City Council, a copy of which is delivered to (a) the Corporation Counsel if the matter is within his or her jurisdiction for review and implementation, or (b) to the MCAD.

Future Developments

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Additional Resources

Employee Management > EEO - Discrimination

Massachusetts Commission Against Discrimination

City of Boston - Office of Civil Rights