by Simone R. Liebman
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. 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. 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. 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.” The elimination of discrimination, the Legislature declared, was a “corner-stone” upon which “world peace must be based.” 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. 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. 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.
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. 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. 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. 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. 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. 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.” 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. 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. 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. 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. 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.
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.
 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).
 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.
 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.
 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).
 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).
 G. L. c. 151B, §§ 1(7) & 5, inserted by St. 1946, c. 368, § 4.
 G. L. c. 151B, § 9, inserted by St. 1946, c. 368, § 4.
 G. L. c. 151B, § 8, inserted by St. 1946, c. 368, § 4.
 G. L. c. 151B, § 9.
 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”).
 Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017) (employee use of medical marijuana is not facially unreasonable as a reasonable accommodation).
 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).
 2018 MCAD Annual Report, p. 11 (Commission counsel were assigned 46% of these cases in 2018).
 804 C.M.R. § 1.18(1)(a).
 804 C.M.R. § 1.20(3).
 See A. Colvin, Economic Policy Institute (EPI), “The Growing Use of Mandatory Arbitration” 1-2, 4 (Sept. 27, 2017).
Two significant changes affecting pay equity are on the horizon for Massachusetts employers. The first is a new Massachusetts law, An Act to Establish Pay Equity (the “Act”), effective July 1, 2018. The Act rewrites section 105A of G. L. c.149 (“section 105A”), which prohibits discrimination based on an employee’s sex in the payment of wages. The second change is issuance of a revised Employer Information Report (“EEO-1”), effective March 31, 2018. The EEO-1 is a form that that private employers and federal contractors must file annually with the U.S. Equal Employment Opportunity Commission (“EEOC”) that provides company employment data by job category, race/ethnicity, and gender. The EEOC uses the data to examine employment patterns and assist its enforcement of anti-discrimination laws. Counsel can take a number of steps to prepare clients for the changes embodied in the Act and the revised EEO-1.
I. An Act to Establish Pay Equity
A. Basic Provisions.
Section 105A(c) as revised by the Act contains three basic requirements: (i) employers may not inquire about an applicant’s salary or benefits history before extending an employment offer that contains compensation terms; (ii) employers may not prohibit employees from talking to their co-workers about wages or benefits; and (iii) employers must pay women based on competitive market rates and not salary history. Those changes are premised on the theory that using salary history disadvantages those who have been the victim of past pay discrimination.
Section 105A(b) inserted by the Act provides an exception to the equal pay requirement if there is a legitimate business reason to pay a man more than a woman (e.g., a bona fide seniority system; a bona fide merit system; a bona fide system that measures productivity; geographic location; education, training or experience; or travel). Employers still should consider reviewing their pay systems for gender bias to ensure that exceptions, if applied, are not discriminatory.
Under new section 105A(d), an affirmative defense to claims of pay inequality is available to employers who perform a good faith self-evaluation of their pay practices that is reasonable in detail and scope at least once every three years. The employer must also be able to demonstrate reasonable progress in addressing any disparity identified during a self-evaluation. Corrective action may not, however, include lowering one individual’s salary to correct an identified disparity.
As with most employment statutes, the Act prohibits retaliation against a person who has engaged in a protected activity. Accordingly, employers must protect from retaliation employees who file complaints or participate in an investigation or litigation. Many practitioners believe that retaliation is the easiest form of discrimination to prove because it can often be demonstrated through timing. Retaliation can be established through a “but/for” test to determine whether an adverse action took place under the Act within a close temporal proximity to the protected activity.
B. Steps Clients Should Take.
Lawyers should encourage clients to begin compliance efforts by performing a self-audit to identify any instances of pay disparity. Depending on the results, clients may then revise their policies, processes, and written materials and online applications, and conduct appropriate training prior to the Act’s effective date.
Self-audits require a careful review of compensation structures to identify pay disparities between positions that are similar in title or function and which involve “comparable work.” An analysis of pay practices should be conducted even if there is no evidence of overt gender bias, because pay structures can unwittingly become misaligned over time.
Clients may need assistance to determine whether any disparity is unlawful, or the product of a legitimate business exception that is objective and reasonable. If a disparity is unlawful, corrective action must be taken promptly. If a legitimate reason for the disparity exists, it should be carefully vetted. A disparity based on merit or productivity should be validated using reliable metrics, and the findings should be carefully documented. An analysis of the business exceptions can not only be used to demonstrate compliance with the Act, but may provide an opportunity to identify and address other potential issues, such as other forms of employment discrimination.
The next challenge for lawyers and clients is determining appropriate corrective actions for pay disparities that do not qualify for legitimate business exceptions. Corrective actions must also demonstrate reasonable progress in eliminating pay inequities, including mechanisms to ensure that disparities do not arise in the future. Solid documentation of corrective action plans and progress in eliminating pay disparity is critical to demonstrating compliance with the Act.
In addition to conducting a self-audit and implementing corrective actions, employers should take prompt steps to review and revise other employment practices such as the recruitment of new employees. Employers can remove requests for salary information from on-line and written applications and instruct recruiters and hiring managers not to request salary information from applicants or during reference checks.
Lawyers should also advise their clients to review all employee materials (e.g., handbooks and manuals, offer letters, etc.) to eliminate language that might discourage employees from talking about pay or benefits with co-workers. Furthermore, these changes should be communicated to employees, and any required notices must be posted when they become available. Documenting such efforts also helps demonstrate good-faith compliance with the Act.
Training employees involved in the onboarding process about what they can and cannot ask during interviews is another critical compliance step. Such training can be coordinated with periodic equal employment opportunity and best practices training, and should be carefully documented.
Lawyers should also be aware that proposed corporate changes, such as a merger or acquisition, may warrant additional review in light of the Act. Suppose, for example, that when pay scales are reviewed prior to a merger, it becomes apparent that men at Company A are paid $100,000 a year, and for the comparable job, women at Company B are paid $60,000. The parties involved in the merger must decide if the merger still makes sense taking into consideration corrective actions that may be necessary to eliminate pay disparities. How, for example, will such corrective measures impact the potential profitability of the merger?
By encouraging clients to implement these changes now, lawyers can help ensure that clients are fully aware of the Act and fully compliant before the Act goes into effect.
II. Changes to the EEO-1
A. Summary of Revisions.
The revisions to the EEO-1 are designed to capture detailed data about employees and wages that will enable the EEOC to improve its analysis of, and address, pay disparities based on discrimination against members of protected classes. For example, the revised EEO-1 differentiates ten job categories and seven categories of “race/ethnicity.” Employers might consider using some of the analytical methods recommended above to examine employment practices with respect to protected classes.
The reporting requirements of the revised EEO-1 are extensive. Effective March 31, 2018, employers with 100 or more employees will need to provide summary pay data, including the total number of annual hours that full- and part-time employees work, in each of the twelve pay bands listed for each EEO-1 job category. Employers must also report the aggregate hours worked by all employees in each pay band. For 2018 filings, the 100-employee threshold is met if the employer has 100 or more full- or part-time employees during any pay period between October 1 and December 31, 2017.
Summary pay data required on the revised EEO-1 include the Form W-2 Box 1 earnings for all employees identified in the selected pay period, including employees who no longer work for the company at year’s end. Summary pay data do not include income earned at the end of 2017 but paid in 2018. Employees’ hours counted during a pay period must be reported as an aggregate value for each job category and pay band (i.e., the total hours worked during that year by all employees reported in that job category and pay band). For non-exempt employees, employers must count the actual hours worked. Exempt employees are credited with 40 hours per week for full-time employees or 20 hours per week for part-time employees. Exempt employees’ hours are multiplied by the number of weeks that they were employed during the year.
The filing deadline for the Form EEO-1 has changed from September 30th to March 31st. This change makes it possible to coordinate such mandated reporting with year-end income reporting.
B. Steps Clients Should Take.
Clients required to file the revised EEO-1 form should begin developing processes to collect the required data. Implementing such processes will require careful coordination between the human resources department, the human resource information system, and the payroll department (or payroll vendor). Such processes should be tested well ahead of the compliance date to ensure that information is captured accurately.
Lawyers should promptly begin to assist clients with analysis of the data that will be submitted on the revised EEO-1. Delaying that analysis could limit an employer’s ability to develop, implement, and document necessary corrective actions.
Employers can use 2016 Form W-2’s to create a mock EEO-1. Lawyers and their clients can then review the mock EEO-1 just as the EEOC would: to identify pay disparities that may lead to an investigation and possibly litigation. To the extent the data suggests that a pay disparity exists, employers can compile evidence to demonstrate the legitimate reason(s) for the pay differential. Such evidence may include records of a seniority system, merit pay, or productivity-based compensation.
Employers should also consider applying some of the steps recommended above for compliance with the Act to an analysis of all protected classes identified on the revised EEO-1. Such an analysis may reveal the need to create new company policies, modify existing policies, provide training to management, and create programs to help develop job skills for employees in protected classes.
By encouraging employer clients to take the steps described in this article now, counsel can help ensure that potential issues of pay inequality are identified and corrected prior to the effective date of the changes implemented by the Act and the revised EEO-1. Such steps may also enable employers to identify and remediate other potential claims of discrimination before they become problematic.
David G. Gabor is a partner with The Wagner Law Group, PC. His practice focuses on employment law and human resources matters.