In September, 2016, the Massachusetts Commission Against Discrimination (MCAD) issued a guidance concerning  gender identity discrimination.  See  http://www.mass.gov/mcad/docs/gender-identity-guidance.pdf  Since 2012, G.L. c.151B has prohibited employment discrimination on the basis of an individual’s gender identity, including discrimination against an employee or job applicant with regard to recruitment, hiring, firing, discipline, promotion, wages, job assignments, training, benefits, and other terms and conditions of employment. As with sexual harassment, gender identity  discrimination may take the form of unwelcome verbal or physical conduct, including but not limited to, derogatory comments, jokes, drawings or photographs, touching or gestures.

Under Massachusetts law,  “gender identity” is defined 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.” Gender identity “refers to  a  person’s internal sense of  their own gender and its expression” and  does not require the individual to have gender affirming surgery or intend to undergo surgery, nor does it require evidence of past medical care or treatment.

The guidance provides the following examples of discriminatory conduct:

  • An employer denies an employee access to the restroom that corresponds to the employee’s gender identity.
  • A supervisor ridicules a transgender subordinate and refuses to respect the employee’s request for gender appropriate pronouns.
  • A transgender employee notifies his employer that his co-workers persistently mock and deride him because of his gender-identity, and the employer fails to take prompt remedial action to stop the harassment.
  • A job applicant who identifies as a man is rejected solely because the employer learns, after checking his employment references that the applicant identified as a woman in previous employment.
  • A man is constantly harassed or made fun of by his supervisors for mannerisms perceived to be feminine.

As the guidance points out, G.L. c. 151B does not prohibit an employer from designating restrooms by  gender. However, the guidance specifically states that “prohibiting an individual from using a restroom or other sex-segregated facility consistent with their gender identity” is illegal, as is  “requiring an employee to provide identification or proof of any particular medical procedure (including gender affirming surgery) in order to access gender designated facilities.”.

A recent MCAD case which illustrates the type of gender identity discrimination which can prove costly to an employer is MCAD  and Tinker v. Securitas Services. In that case, the complainant self-identified as female when hired, but subsequently informed the employer that he was transgender, was transitioning to a man, and wished to be called by his new name and  the pronoun “he.” The complainant’s supervisor refused to comply with this request and regularly referred to or addressed him  as “she” or “Becky.”  The supervisor also referred to complainant  and a female employee as “you girls” or “those girls,” and berated them for causing problems at the site. At one point, the supervisor swore at the complainant, accused him of not doing his “f—king job,” said  “you girls are always causing problems,” and asked him why “you girls won’t do your job.” After this incident, complainant filed a charge of discrimination and the employer transferred him and gave him a new supervisor. The complainant continued to work for 15 months without any further harassment, then resigned. The MCAD awarded complainant $50,000 in emotional distress damages, plus several years of interest at the rate of 12% per year and an award of attorney’s fees.

To avoid this type of  liability, the MCAD guidance recommends the following best practices for Massachusetts employers:

  • Revise non-discrimination, equal opportunity, non-harassment, and other employment-related policies to include a statement that discrimination and harassment on the basis of gender identity is prohibited;
  • Update personnel records, payroll records, email systems, and other documents to reflect employee’s stated name and gender identity, and ensure confidentiality of any prior documentation of an employee’s pre-transition name or gender marker;
  • Prohibit derogatory comments or jokes about transgender persons from employees, clients, vendors and any others, and promptly investigate and discipline persons who engage in discriminatory conduct;
  • Investigate and take appropriate remedial action when on notice of harassing or discriminatory conduct in the workplace;
  • Use names, pronouns, and gender-related terms appropriate to employee’s stated gender identity in communications with employee and with others;
  • Avoid gender-specific dress codes and permit employees to dress in a manner consistent with their gender identity;
  • Provide employees access to any sex-segregated facility, i.e. bathrooms, locker room facilities, based on the employee’s stated gender identity;
  • Incorporate in diversity, anti-discrimination, and anti-harassment training information about transgender individuals and employees, whether or not there are currently  transgender employees, or employees who have self-identified as transgender, at the workplace or in the place of public accommodation.

 

At Boston Employment Law PC, we represent both employers and employees with respect to a wide variety of employment law issues. For more information, please contact Howard Brown at hmb@bostonemploymentlaw.com or at (617) 566-8090.