Fair Housing Enforcement in the Age of Digital Advertising: A Closer Look at Facebook’s Marketing Algorithms

by Nadiyah Humber and James Matthews

Legal Analysis

Introduction

The increasing use of social media platforms to advertise rental opportunities creates new challenges for fair housing enforcement.  The Fair Housing Act, 42 U.S.C. §§ 3601-19 (“FHA”) makes it unlawful to discriminate in the sale or rental of housing on the basis of race, color, religion, sex, familial status, national origin, and disability (“protected classes”).  The FHA also prohibits discriminatory advertising, including distributing advertisements in a way that denies people information about housing opportunities based on their membership in a protected class.  Accordingly, advertisers and digital platforms that intentionally or unintentionally cause housing advertisements to be delivered to users based on their membership in a protected class may be liable for violating the FHA.

In March 2018, in response to what they perceived to be discriminatory advertising on Facebook, the National Fair Housing Alliance (“NFHA”) and several housing organizations filed suit in federal court in New York City.[1]  The lawsuit alleged that Facebook’s advertising platform enabled landlords and real estate brokers to prevent protected classes from receiving housing ads.  Facebook settled the suit on March 19, 2019.[2]  As part of the settlement, Facebook agreed to make a number of changes to its advertising portal so that housing advertisers can no longer choose to target users based on protected characteristics such as age, sex, race, or zip code.  Facebook also committed to allow experts to study its advertising platform for algorithmic bias.  It remains to be seen whether this agreement goes far enough in curtailing discriminatory advertising practices, as Facebook is confronting further enforcement action from a government watchdog in respect to similar issues.  Moreover, a recent research study found that Facebook’s digital advertising platform may still lead to discriminatory outcomes despite changes already made.

On August 13, 2018, the Assistant Secretary for Fair Housing and Equal Opportunity filed a complaint with the Department of Housing and Urban Development (“HUD”) alleging that Facebook is in violation of the FHA.  The Office of Fair Housing and Equal Opportunity determined in March, 2019 (the same time as the settlement agreement with NFHA) that reasonable cause exists and issued an official Charge against Facebook.[3]

Notwithstanding these suits and administrative actions, it remains that, for fair housing claims to survive in court against media giants like Facebook, HUD and future plaintiffs must first successfully argue that Facebook is not protected by the Communications Decency Act (“CDA”).[4]

Communications Decency Act

Congress enacted the CDA, in part, to prohibit obscene or indecent material from reaching children on the internet, and also to safeguard internet ingenuity.[5]  What was meant as a protectionist measure for the young, impressionable, and inventive, however, evolved into a powerful defense tool used by web applications, like Facebook.  Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties.  To overcome the CDA hurdle, litigants have to demonstrate that Facebook “materially contributes” to the management of content on their platform.  Fair Hous. Counsel of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1163 (9th Cir. 2008).  While many online service providers have successfully used Section 230 in their defense, the protections offered to internet service providers are not absolute.

The CDA contains requirements that restrict the application of Section 230.[6]  The language in Section 230 prevents a “provider or user of an interactive computer service” from being “treated as the publisher or speaker of any information” that is exclusively “provided by another content provider.”[7]  The U.S Court of Appeals for the Ninth Circuit concluded that publishing amounts to “reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009).  The idea is that website operators would no longer be liable for deciding to edit or remove offending third-party content.

Based on this reading, the law immunizes only “certain internet-based actors from certain kinds of lawsuits.”[8] The statute, as discussed in Roommates.com, LLC, 521 F.3d at 1162, provides no protection to online content that was created by a website operator or developed – in whole or in part – by the website operator.  Courts have reaffirmed the CDA’s limited scope to protect self-policing service providers that act as “publishers” of third-party content, as opposed to liability against all categories of third-party claims (i.e. violations of civil rights laws at issue in this article).  Barnes, 570 F.3d at 1105; Accord Doe v. Internet Brands, Inc., 824 F.3d 846, 852-53 (9th Cir. 2016).  These limitations are crucial.  If a plaintiff can show that Facebook developed the content on its platform in whole or in part or, content aside, that Facebook produces discriminatory outcomes via mechanisms on its platform developed by Facebook, it may be excluded from Section 230 immunity.

Optimization Discrimination Study

In a recent study by researchers at Northeastern University, [9] evidence of Facebook’s control over ad dissemination demonstrates how Facebook manages output of information based on headlines, content, and images, using “optimization.”[10]  In short, the Study set out to determine how advertising platforms themselves play a role in creating discriminatory outcomes.  The Study highlighted the mechanisms behind, and impact of, ad delivery, which is a process distinct from ad creation and targeting.  For example, the Study found that inserting musical content stereotypically associated with Black individuals was delivered to over 85% Black users, while musical content stereotypically associated with White people was delivered to over 80% White users.  The researchers concluded that “ad delivery process can significantly alter the audience the ad is delivered to compared to the one intended by the advertiser based on the content of the ad itself.”  The study also simulated marketing campaigns and found that Facebook’s algorithms “skewed [ad] delivery along racial and gender lines,” which are protected categories under the FHA.  These results suggest that, even if a housing advertiser can no longer choose to explicitly target ads based on attributes like age, gender, and zip code, a housing advertiser could still use Facebook’s marketing platform to steer ads away from protected segments of users by manipulating the content of the ad itself.  Moreover, the platform may cause such discriminatory outcomes regardless of whether or not the advertiser intended such results.

Case Law Interpreting CDA

The Study’s findings set the foundation for evaluating Facebook’s control over the manipulation of content and ad distribution on their platform.  Two seminal cases, Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) and Roommates.com, LLC, 521 F.3d 1152 (2008), outline tests to determine when online platforms are considered content managers versus content providers.[11]  The Study makes a strong case for why Facebook is a content manager, eliminating immunity under Section 230.  Litigants can also persuasively distinguish their arguments against Facebook from a recent decision interpreting Section 230 liability.  In Herrick v. Grindr, LLC, 306 F. Supp.3d 579 (2018), the U.S. Court of Appeals for the Second Circuit ruled in favor of Grindr (a same-sex dating application) on all but one of the plaintiff’s claims.  The plaintiff had argued that Grindr failed to monitor and remove content created by the plaintiff’s ex-partner, and the court concluded that Section 230 barred several of his claims because they were “inextricably related” to Grindr’s role in editing or removing offending content (which is protected conduct under the CDA).  Herrick v. Grindr, LLC, 306 F. Supp.3d 529, 588.  The Supreme Court denied Herrick’s petition to review on October 7, 2019.[12]

A major distinguishing feature between the facts in Herrick and the Study’s findings against Facebook is how the two websites handle third-party content.  In Herrick, the claim against Grindr was based on Grindr’s failure to remove content generated by a third-person.  The issue with Facebook exists in the use of optimization algorithms.  The point is that discriminatory outcomes are ultimately a result of Facebook’s manipulation of ad delivery for the purpose of reaching certain groups at the exclusion of others in protected categories.  Facebook’s tools go well beyond the function of “neutral assistance,” because its platform directs advertisements to sectors of people using discriminatory preferences created by Facebook, not third-parties.[13]

Intentional Discrimination

If it can be successfully argued that Facebook is not immune from suit under the CDA, housing advertisers and digital platforms that intentionally or unintentionally target ads to certain groups of users based on their membership in a protected class may be sued for violating the FHA.  As described above, the Facebook Study determined that housing advertisers may still be able to use Facebook’s marketing platform to steer housing ads away from protected classes of tenants by manipulating the content of the ad.  In such circumstances, the housing advertiser who uses the ad’s content as a covert method of discriminatory distribution may be violating the FHA.  The digital platform may also be liable either because they are actively involved in facilitating the selective distribution of ads, or as an agent vicariously liable for the advertiser’s conduct.

Disparate Impact

Even if it cannot be shown that a housing advertiser intended to discriminate, if the ad delivery mechanism has the effect of distributing housing ads in a discriminatory way, the advertiser and platform may still be liable for violating the FHA under a theory of disparate impact.  Disparate impact discrimination occurs when a neutral policy or practice has a discriminatory effect on members of a protected class.  See Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2523 (2015); see also 24 C.F.R. § 100.500.  A three-part burden shifting framework is used to evaluate liability.  Id.  Protected class members have the initial burden of establishing that a practice has a disproportionate adverse effect on a protected class.  To meet this initial burden, a plaintiff must “allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection” between the policy and the disparate impact.  Inclusive Communities, 135 S. Ct. 2507, 2523 (2015).

If a protected class member makes out a prima facie claim of disparate impact, the burden then shifts to the accused party to show that the practice is necessary to achieve a valid interest.  See Robert G. Schwemm, Calvin Bradford, Proving Disparate Impact in Fair Housing Cases After Inclusive Communities, 19 N.Y.U.J. Legis. & Pub. Pol’y 685, 696-697 (2016).  The protected class members then have an opportunity to show that the interest could be achieved through less discriminatory means.  Id.

In the digital advertising context, protected class members would have the initial burden of showing that they were denied equal access to information about a housing opportunity as a result of a housing advertiser’s marketing campaign.

Statistical Evidence

While the Facebook Study was able to demonstrate the potential for “skewed” ad delivery based on protected characteristics, further research is needed to determine how a plaintiff might marshal statistical evidence to support a particular claim.  As the Facebook Study notes, without access to a platform’s “data and mechanisms” it may be difficult to assess whether or not a particular advertising campaign has led to discriminatory outcomes.[14]  Therefore, it may be challenging for adversely affected users to develop the necessary data at the pleading stage to make out a prima facie claim of disparate impact.  This might explain why HUD is continuing to pursue its legal challenge against Facebook despite the remedial measures it has already agreed to undertake, including allowing research experts to study its advertising platform for algorithmic bias.[15]  In other words, HUD’s intent may be to better understand how Facebook’s ad delivery algorithm works now so it can limit its discriminatory impact.

Causal Connection

Because digital advertising companies play an active role in the ad delivery process, it follows that a discriminatory distribution of ads could be attributed to the platform.  While there are limited case decisions involving FHA liability and algorithmic decision-making programs, the court in Connecticut Fair Hous. Ctr. v. Corelogic Rental Prop. Sols, LLC, 369 F. Supp. 3d 362 (D. Conn. 2019), found that plaintiffs had pled sufficient facts to establish a causal connection between a tenant screening company’s alleged activity and unlawful housing denials to support a claim of disparate impact based on race.  Id. at 378-379.  The court found that the defendant had created and provided the automated screening process, suggested the categories by which the housing provider could screen potential tenants, made eligibility determinations, and sent out letters to potential tenants notifying them of these decisions.  Id.

Digital advertising companies similarly create the marketing platform for housing advertisers to use, provide criteria from which to choose the users, and design and maintain the algorithms that decide to whom the ads will be delivered.  Therefore, a sufficient nexus should exist between the advertising platform’s activity and the selective distribution of ads to support a disparate impact claim.

Valid Interest

Housing providers and digital advertising platforms arguably have a “valid interest” in being able to effectively market their housing services, and ad delivery algorithms are an efficient way to reach relevant users.  However, given the abundance of print and online advertising options available for housing advertisers that do not rely solely on ad delivery algorithms, such as Craigslist, Zillow, Trulia, and Apartments.com etc., less discriminatory means exist by which housing advertisers can successfully market their services.

HUD recently proposed a new disparate impact rule that would raise the bar even higher for plaintiffs bringing disparate impact claims and provide housing advertisers with a defense if a digital advertising platform’s algorithmic model was the cause of a discriminatory outcome.[16]  A number of tenant advocacy groups and other stakeholders, such as Harvard Law School’s Cyberlaw Clinic, have submitted comments opposing the proposed rule, arguing, among other concerns, that it would perpetuate discrimination by “significantly reduc[ing] incentives for algorithm users and vendors to test their tools for bias” contrary to the purpose of the FHA.[17]

Conclusion

The FHA was designed to provide all home-seekers, who have the resources, with equal access to housing stock and opportunity.  It seems clear that online platforms in the business of designing and maintaining their algorithms have an impact on large segments of protected populations.  The tension between the need for more information to combat discriminatory algorithms and propriety interests remain.  However, one important way to move forward is to balance these interests by staying within the bounds of the FHA, including incentives for platforms to evaluate their ad delivery tools for distribution bias, and ensure a more inclusive participation in the housing market for all social media users.

Nadiyah J. Humber is the Assistant Clinical Professor of Law and Director of the Corporate Counsel, Government, and Prosecution Clinical Externship Programs at Roger Williams University School of Law (“RWU”). RWU students earn academic credit externing for in-house legal offices of corporations, offices of prosecution, and government agencies in Rhode Island and beyond. Professor Humber teaches related seminars for each program on the role of one client entities and professional development through practice.  

James Matthews is a Clinical Fellow in Suffolk Law School’s Accelerator Practice and Housing Discrimination Testing Program (HDTP) where he supervises law students in housing discrimination, landlord-tenant, and other consumer protection matters related to housing. Attorney Matthews also has significant teaching and professional presenting experience. He helps conduct fair housing trainings and presentations as part of HDTP’s community education and outreach. He also teaches an upper-level landlord-tenant course he developed which includes instruction on state and federal fair housing law.   

[1] Nat’l Fair Housing Alliance, et al v. Facebook, Inc., No. 18 Civ. 2689, Complaint (detailing allegations), available at https://nationalfairhousing.org/wp-content/uploads/2018/03/NFHA-v.-Facebook.-Complaint-w-Exhibits-March-27-Final-pdf.pdf (last visited Jan. 13, 2020).

[2] National Fair Housing Alliance, Facebook Settlement, available at https://nationalfairhousing.org/facebook-settlement/ (last visited Jan. 20, 2020).

[3]Assistant Sec’y of Fair Hous. & Equal Opportunity v. Facebook, Inc., No 01-18-0323-8, 1, Charge of Discrimination (detailing procedural history), available at https://www.hud.gov/sites/dfiles/Main/documents/HUD_v_Facebook.pdf  (last visited Dec. 8, 2019).

[4] 47 U.S.C. § 230(c) (2019).

[5] Brief of Internet, Business, and Local Government Law Professors as Amici Curiae Supporting the Respondents at 7 Homeaway.com & Airbnb, Inc. v. City of Santa Monica, Nos. 2:16-cv-06641-ODW, 2:16-cv-06645-ODW (9th Cir. May 23, 2018). See generally 47 U.S.C. §§ 230(b) (detailing policy goals for freedom on the internet).

[6] Brief of Internet, Business, and Local Government Law Professors as Amici Curiae Supporting the Respondents at 9, Homeaway.com & Airbnb, Inc. v. City of Santa Monica, Nos. 2:16-cv-06641-ODW, 2:16-cv-06645-ODW (9th Cir. May 23, 2018).

[7] 47 U.S.C. §§ 230(c)(1), (f)(3) (2019).

[8] Brief of Internet, Business, and Local Government Law Professors as Amici Curiae Supporting the Respondents at 4, Homeaway.com & Airbnb, Inc. v. City of Santa Monica, Nos. 2:16-cv-06641-ODW, 2:16-cv-06645-ODW (9th Cir. May 23, 2018).

[9] Ali, Muhammad, et. al, Discrimination through Optimization: How Facebook’s Ad Delivery Can Lead to Skewed Outcomes, available at https://www.ccs.neu.edu/home/amislove/publications/FacebookDelivery-CSCW.pdf (last visited Dec. 6, 2019).

[10] Id. at 7 (explaining optimization on Facebook).

[11] See Nadiyah J. Humber, In West Philadelphia Born and Raised or Moving to Bel-Air? Racial Steering as a Consequence of Using Race Data on Real Estate Websites, 17 Hastings Race & Poverty L.J. 129, 153-155 (2020) (analyzing pertinent case law precedent for Section 230 immunity). There is a difference between online services that manage content (content provider) on their sites versus those that act more as a store house of information (service provider). Id.

[11] 47 U.S.C. § 230(c) (2019).

[12] Bloomberg Law available at https://news.bloomberglaw.com/tech-and-telecom-law/grindr-harassment-case-wont-get-supreme-court-review

[13] 47 U.S.C. § 230(c) (2019) (citing language from the act). Distinguishing O’Kroley v. Fastcase Inc., No. 3-13-0780, 2014 WL 2881526, at *1–2 (M.D. Tenn. June 25, 2014) (finding that providing search returns based on automated algorithms and user inputs does not constitute creating content).

[14] Muhammad, supra note 9.

[15] See supra note 2.

[16] See HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, 84 Fed. Reg. 42853 (proposed Aug. 19, 2019) (for example, providing a defense where a “(2) plaintiff alleges that the cause of a discriminatory effect is a model, such as a risk assessment algorithm, and the defendant . . . (ii) Shows that the challenged model is produced, maintained, or distributed by a recognized third party that determines industry standards, the inputs and methods within the model are not determined by the defendant, and the defendant is using the model as intended by the third party . . .”)

[17] See Cathy O’Neil, Comment Regarding Docket No. FR-6111-P-02, http://clinic.cyber.harvard.edu/files/2019/10/HUD-Rule-Comment-ONEIL-10-18-2019-FINAL.pdf (last visited Jan. 20, 2020).


The Massachusetts Commission Against Discrimination: Steady in the Storm

by Simone R. Liebman

Legal Analysis

Introduction

In October, the Supreme Court of the United States heard argument in three cases that involve an unconventional division between the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC), the federal agency authorized to interpret and enforce Title VII of the Civil Rights Act of 1964 (Title VII). These cases concern whether Title VII’s prohibition against bias “because of . . . sex” encompasses employment discrimination based on sexual orientation and transgender status.[1] At the federal circuit court level, the EEOC argued that discriminating against an employee because of sexual orientation and gender identity amounts to sex discrimination under Title VII. When the cases were appealed to the Supreme Court, however, the DOJ took the extraordinary step of filing briefs on behalf of the EEOC, rather than permitting the agency to do so.[2] Moreover, the DOJ urged the Court to review Title VII restrictively, contrary to the EEOC’s established position, and argued that the law does not explicitly prohibit sexual orientation or gender identity discrimination. The split in the federal government was further underscored when former federal officials, including the EEOC’s former chairs, commissioners, and general counsels, filed briefs arguing that sexual orientation and gender identity are intrinsically functions of sex and predicated on sex stereotypes.

The DOJ’s effort to override the authority and precedent of the EEOC is unique and historically noteworthy. And it provides a sharp contrast with the robust protections ensuring equal opportunities in employment available to Massachusetts employees through chapter 151B of the Massachusetts General Laws as enforced by the Massachusetts Commission Against Discrimination (MCAD). In enacting G.L. c. 151B in 1946, the Legislature granted the MCAD broad remedial powers and significant enforcement authority. The MCAD is a law enforcement agency with police powers designed to vindicate public rights. This legislative mandate has shaped judicial precedent, often putting Massachusetts at the vanguard in providing protection for employees. The statutory scheme includes a case process that is accessible to victims of discrimination regardless of socio-economic class and results in remedies designed to compensate past wrongs and deter future illegal workplace conduct. Due to the independent, prosecutorial nature of the agency, courts have found that victims of discrimination at the MCAD may proceed in situations where private litigants would otherwise have been barred. The current battle in the Supreme Court over who interprets Title VII, and whether the law should be broadly or restrictively construed, demonstrates the importance of the MCAD’s ability to act in its own name as a public law enforcement agency to protect civil rights in Massachusetts.

G.L. c. 151B grants the MCAD law enforcement authority.

Chapter 151B has always prohibited religious, race, national origin and ancestry discrimination.[3] The Legislature acknowledged that discriminatory conduct is no less than a “harmful influence to our democratic institutions” and stated that “no well-informed, right thinking person can be oblivious or indifferent to this evil.”[4] The elimination of discrimination, the Legislature declared, was a “corner-stone” upon which “world peace must be based.”[5] With extraordinary legislative foresight, the statute authorized the MCAD at its inception to act as a civil prosecutor with significant enforcement authority. The legislation granted the MCAD the ability to conduct investigations; subpoena individuals; and issue complaints in its own name, even where no complaint has been filed by an aggrieved person.[6] To ensure that the MCAD has the opportunity to identify trends and, if appropriate, take action, MCAD’s enforcement proceedings “shall, while pending, be exclusive,” taking precedence over any other type of recourse available.[7] The statute imposed criminal sanctions, including imprisonment, where an employer willfully resists, prevents, impedes, or interferes with the MCAD in the performance of its statutory duties.[8]

G.L. c. 151B Mandates Liberal Construction.

Of considerable importance, the legislation explicitly requires that G.L. c. 151B “be construed liberally for the accomplishment of the purposes” of the statute.[9]  This directive has resulted in significant protections for Massachusetts employees. In 2013, the Supreme Judicial Court held that G.L. c. 151B prohibits discriminating against an employee based on the employee’s association with an individual who is disabled, despite the absence of an explicit statutory prohibition against associational disability discrimination.[10] In 2017, the SJC was the first state appellate court to conclude that under specific circumstances, an employer may be required to reasonably accommodate an employee with a debilitating medical condition that is treated through the use of medical marijuana.[11]  This year, the SJC concluded that an employer could be found to have engaged in illegal discrimination even when the discriminatory act in question was a lateral transfer, without any effect on the employee’s base salary, work responsibilities, or title.[12] Each of these cases relied, in large part, on the long-standing mandate that G.L. c. 151B must be interpreted liberally to achieve its remedial purposes. In contrast, Title VII has no such mandate.

The MCAD’s case processing furthers the remedial goals of the statute.

There is no fee for filing a charge of discrimination with the MCAD and no requirement to obtain legal assistance in filing. If the investigating commissioner concludes that the case has “probable cause” to proceed, and the charging party does not hire private counsel, the matter is assigned to a Commission attorney to prosecute the matter in the public interest. Almost half of the cases found by the MCAD to have probable cause are assigned to a Commission attorney, who generally prosecutes the matter through public hearing at no cost to the complainant.[13] After probable cause has been found, the Commission schedules a mandatory conciliation conference, again at no cost to the parties, in which an MCAD conciliator “will attempt to achieve a just resolution of the complaint and to obtain assurances that the Respondent will satisfactorily remedy any violations . . . and take such action as will assure the elimination of the discriminatory practices, or the prevention of their occurrence in the future.”[14] Many cases are resolved at the conciliation conference, and include public interest relief such as training or policy change.

The case is certified to public hearing if the investigating commissioner determines that the public interest so requires, and a complaint is issued in the name of the Commission.[15] It will then be heard by an MCAD hearing officer or a commissioner with expertise in G.L. c. 151B. If the employer is found to have violated the statute, the MCAD issues remedies designed to deter future illegal conduct, including a cease and desist order, a wide array of injunctive and affirmative relief such as training, reinstatement, policy change, and civil penalties, in addition to attorneys’ fees and compensatory damages to make the complainant whole. See Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 563 (2004).

The MCAD may proceed where private litigants may not.

The MCAD’s “police powers” allow it to proceed with civil prosecutions in situations where a private litigant seeking redress in court could not. For example, where an employer files for bankruptcy during a civil proceeding, the automatic stay preventing the continuation of any civil proceeding generally applies.[16] Cases pursued through the administrative process at the MCAD, however, fall within the exception to the automatic stay that allows governmental units to exercise police or regulatory power.[17] Recognizing the “strongly felt” public policy against discrimination and the enforcement powers granted to the MCAD, the court in In re Mohawk Greenfield Motel Corp., 239 B.R. 1 (Bankr. D. Mass. 1999), held that the MCAD possessed police or regulatory power that qualified for the exception. The court further acknowledged that while back pay awards have a financial benefit to an employee who proves liability and is awarded victim-specific relief, the imposition of this remedy ensures future compliance and serves a public purpose: ensuring that the employer at issue “as well as others who might contemplate similar odious behavior, would be dissuaded from its future practice.” Id. at 9. Crucial to this decision exempting MCAD proceedings from the automatic stay was the recognition that it is fundamental to the MCAD’s authority to act in the public good to identify and remediate discriminatory conduct without excessive delay, and that “the benefit to the public arising from the continuing capability of MCAD to identify and sanction discriminatory behavior overshadows any associated pecuniary benefit to the victim of that discrimination.” Id. at 9.

Similarly, it was the public enforcement nature of the MCAD’s process that led the SJC in Joulé, Inc. v. Simmons, 459 Mass. 88 (2011), to permit the continued prosecution of an MCAD claim even where a binding pre-employment arbitration agreement required the victim of discrimination to arbitrate the claim rather than file a private right of action. Acknowledging that it is the MCAD and not the complainant that prosecutes the discrimination claim, the SJC concluded that mandatory arbitration clauses, otherwise applicable to private claims of workplace discrimination, do not and cannot bar administrative enforcement proceedings under G. L. c. 151B, § 5. Id. at 95-96. Given that over half of American private-sector nonunion employees are subject to mandatory arbitration procedures, the ability to proceed with a claim at the MCAD despite a binding arbitration agreement is of notable significance to employees in the Commonwealth.[18] In Whelchel v. Regus Management Group, LLC, 914 F. Supp. 2d 83 (D. Mass. 2012), the substantial state interest in preserving the MCAD’s oversight role over discrimination claims led the court to refuse to allow an employer to remove an MCAD matter to federal court. These practical advantages to proceeding at the MCAD all flow from the Legislature’s recognition over seventy years ago that the main object of an MCAD proceeding is to “vindicate the public’s interest in reducing discrimination in the workplace by deterring and punishing, instances of discrimination by employers against employees.” Stonehill College, 441 Mass. at 563.

Conclusion

When the Legislature enacted G.L. c. 151B in 1946, no one could have foreseen the current divisiveness in the federal government, nor were there any federal civil rights protections or an EEOC in place to enforce them. That was not to come into play until 1964. But the Massachusetts Legislature created safeguards resilient enough to withstand the winds of change.

Rather than merely creating a forum through which private litigants resolve disputes, the Legislature recognized the need for an independent, public agency to promote and protect the fundamental right of Massachusetts citizens to obtain equal opportunities in the workplace.

 

Simone R. Liebman is Commission Counsel at the MCAD where she where she represents the agency in Massachusetts trial and appellate courts, files amicus briefs in select cases, assists with the drafting of policy and guidance, prosecutes cases through public hearing, and conducts affirmative litigation. This article represents the opinions and legal conclusions of its author and not necessarily those of the MCAD. Opinions of the MCAD are formal documents rendered pursuant to specific statutory authority.

 

[1] Altitude Express, Inc. v. Zarda, No. 17-1623 and Bostock v. Clayton County, Georgia, No. 17-1618 involve the question of whether sex discrimination under Title VII includes bias based on sexual orientation. R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, No. 18-107, addresses the question of whether it is a violation of Title VII to discriminate against an employee based on the employee’s transgender status or under a theory of sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[2] http://www.abajournal.com/news/article/eeoc-doesnt-sign-us-brief-telling-supreme-court-that-transgender-discrimination-is-legal; https://www.reuters.com/article/us-otc-doj/once-again-trump-doj-busts-convention-splits-government-in-high-profile-employment-case-idUSKBN1AC32U.

[3] See G. L. c. 151B, inserted by St. 1946, c. 368, § 4. Since its enactment, G.L. c. 151B has been expanded to include other protected categories. Currently, G.L. c. 151B prohibits discrimination based on race, color, religious creed, national origin, disability, sex, gender identity, sexual orientation, genetic information, pregnancy (including a pregnancy-related condition), veteran status, age, and active military service. G.L. c. 151B, § 4. The MCAD also has jurisdiction over a host of other types of discriminatory conduct including retaliation, failure to accommodate disabilities, housing discrimination, certain inquiries regarding criminal records, parental leave, public accommodation discrimination, mortgage lending and credit discrimination, and certain types of education discrimination.

[4] REPORT OF THE SPECIAL COMMISSION RELATIVE TO THE MATTER OF DISCRIMINATION AGAINST PERSONS IN EMPLOYMENT BECAUSE OF THEIR RACE, COLOR, RELIGION, OR NATIONALITY, H.R. Rep. No. No. 337, 154th Leg., 1st Sess. at 2 (Mass. 1945).

[5] REPORT  OF  THE GOVERNOR’S COMMITTEE TO RECOMMEND FAIR EMPLOYMENT PRACTICE LEGISLATION, H.R. REP. No. 400, 154th Leg., 2nd Sess., at 7 (Mass. 1946).

[6] G. L. c. 151B, §§ 1(7) & 5, inserted by St. 1946, c. 368, § 4.

[7] G. L. c. 151B, § 9, inserted by St. 1946, c. 368, § 4.

[8] G. L. c. 151B, § 8, inserted by St. 1946, c. 368, § 4.

[9] G. L. c. 151B, § 9.

[10] Flagg v. AliMed, Inc., 466 Mass. 23 (2013) (“reading the statutory language broadly in light of its remedial purpose, and in order best to effectuate the Legislature’s intent, we think that the concept of associational discrimination also furthers the more general purposes of c. 151B as a wide-ranging law, ‘seek[ing] … removal of artificial, arbitrary, and unnecessary barriers to full participation in the workplace’ that are based on discrimination”).

[11] Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017) (employee use of medical marijuana is not facially unreasonable as a reasonable accommodation).

[12] Yee v. Massachusetts State Police, 481 Mass. 290 (2019) (where there are material differences between two positions in the opportunity to earn compensation, or in the terms, conditions, or privileges of employment, the failure to grant a lateral transfer to the preferred position may constitute an adverse employment action under G.L. c. 151B).

[13] 2018 MCAD Annual Report, p. 11 (Commission counsel were assigned 46% of these cases in 2018).

[14] 804 C.M.R. § 1.18(1)(a).

[15] 804 C.M.R. § 1.20(3).

[16] 11 U.S.C. § 362(a)(1) (the filing of a bankruptcy petition stays the commencement or continuation of all non-bankruptcy judicial proceedings against the debtor).

[17] 11 U.S.C. § 362(b)(4).

[18] See A. Colvin, Economic Policy Institute (EPI), “The Growing Use of Mandatory Arbitration” 1-2, 4 (Sept. 27, 2017).