Practice Tips for Navigating the Investigative Process at the Massachusetts Commission Against DiscriminationPosted: November 18, 2020
by Heather E. Hall
Whether you appear regularly before the Massachusetts Commission Against Discrimination (“MCAD” or “Commission”) or are new to the practice, this article provides a general overview of the Commission’s expectations and suggested best practices during the early stages of the MCAD process, from filing a complaint through the issuance of an investigative disposition by an Investigating Commissioner. This article is not a substitute for reading the MCAD’s regulations, which were substantially revised on January 24, 2020, after a lengthy public hearing process. When practicing before the Commission, attorneys should become familiar with the regulations and also review the MCAD’s website, which is regularly updated with changes to processes and other useful guidance.
At the beginning of 2020, MCAD staff worked in four offices, in Boston, Springfield, Worcester, and New Bedford, and were beginning to acclimate to the updated regulations. Due to the COVID-19 public health crisis, during the week of March 16, MCAD staff began telecommuting. Over the course of the telecommuting period, the Commission adjusted various processes in order to continue the majority of its operations. Where applicable, changes made due to COVID-19 will be discussed herein.
In early June 2020, the MCAD began the process of phasing staff back into the offices. At the time of this article, most of the employees work at least one day per week in the offices, with administrative staff working in the offices at least two days per week. Attorneys should be mindful of the MCAD’s limited in-office capacity during the pandemic. In this vein, the MCAD encourages the use of email whenever possible.
Investigations Division Overview
The Investigations Division is comprised of nine units with approximately 50 people, including Administrative staff, who assist with document organization and processing; Investigators and Investigative Supervisors, who conduct the investigations; Attorney Advisors, who provide legal guidance and support to the investigative staff; and the Deputy Chief and Chief of Investigations, who manage the personnel and overall operations of the Division. The MCAD processes approximately 3,000 complaints each year. The agency saw an uptick of over 300 more complaints filed in 2019 than in 2018.
Manner of Filing
The 2020 MCAD Procedural Regulations, 804 CMR § 1.04(2), speak to the manner of filing complaints, but processes have been adjusted due to COVID-19. There are currently three ways to file a complaint with the MCAD: (1) via U.S. mail (“mail-in” complaints by attorneys and pro se complainants); (2) via email through the MCAD e-complaint portal (attorneys only); and (3) via phone with an Intake Specialist (pro se complainants only). The MCAD issued its “Guidance for Attorneys and Duly Authorized Representatives During the COVID-19 Public Health Crisis” on April 1, 2020 (“April 2020 Guidance”). (If you would like a copy, please contact the MCAD at: email@example.com.) As noted in the April 2020 Guidance, if attorneys are unable to obtain the complainant’s signature on the complaint, the complaint must include an email verification from the complainant stating that the complaint is made under the pains and penalties of perjury.
Attorneys are strongly encouraged to file complaints via the online portal at: https://massgov.formstack.com/forms/mcad_ecomplaint_filing_portal. If you choose to file a “mail-in” complaint, please do not also file an e-complaint, as this creates an additional administrative burden. Since the MCAD offices are currently still closed to the public, in-person intake services for pro se complainants have been suspended until further notice. For more information, see our “MCAD COVID-19 Information and Resource Center.”
Statute of Limitations
Pursuant to M.G.L. c. 151B, § 5, and 804 CMR § 1.04(3), a complaint must be filed within 300 days after the alleged discriminatory conduct. Under the April 2020 Guidance, the individual Commissioners will consider extending the filing deadlines on a case-by-case basis in extenuating circumstances.
Information in Complaints
When filing, attorneys must: (1) provide the complainant’s and respondent’s full contact information, including address, phone numbers, and email addresses, if available; (2) identify applicable protected classes to which the complainant belongs and cite to the appropriate statutory authorities; and (3) provide specifics regarding dates, names, and positions of the persons alleged to have committed unlawful discriminatory acts.
Key Tip: Before submitting a complaint to the MCAD, conduct a full interview with the complainant and an investigation of the facts of the complaint, to ensure compliance with the regulations.
An Investigating Commissioner may allow a pseudonym complaint to proceed “when a specific overriding reason for confidentiality unique to complainant and substantial safety or privacy interests are demonstrated.” 804 CMR § 1.04(7). If an attorney wishes to file a pseudonym complaint, the complaint itself “shall not include the identity of the complainant” and the attorney must simultaneously file a motion to allow the use of a pseudonym. 804 CMR §§ 1.04(7)(a) and (b).
Withdrawal of a Complaint
Complainants may request to withdraw a complaint filed at the Commission. 804 CMR § 1.04(12). A required withdrawal form is available on the MCAD’s website.
Respondents must file an answer to the complaint in the form of a position statement. 804 CMR § 1.05(8). The revised regulations have strict deadlines with respect to extensions for filing position statements. The deadline for filing a position statement regarding employment, public accommodation, education, or non-HUD housing complaints, is “within 21 days of receipt” of the complaint. 804 CMR § 1.05(8)(a)1. With respect to extensions, the regulations provide, “Upon written request by the respondent, and for good cause shown, the Commission may grant an extension… not to exceed 21 days absent exceptional circumstances.” 804 CMR § 1.05(8)(a)1. The deadline for position statements in HUD housing complaints is within 14 days of receipt of the complaint. 804 CMR § 1.05(8)(a)2.a. Requests for extensions in HUD complaints are “strongly discouraged” due to the timelines set by HUD. 804 CMR § 1.05(8)(a)2.b.
Position Statement Contents
Full and complete position statements are essential to the MCAD’s investigative process. Position statements should include responses to all the allegations in the complaint. Respondents must also provide evidence and supporting documentation for all defenses, including but not limited to, comparators, internal investigations, policies cited, and performance records, where applicable. Supply the dates of the incident(s). If the respondent does not know the specific date(s), be as specific as possible and give a time frame. Do not wait until an investigative conference or a request from the Investigator to submit this information.
Key Tip: Remember to affirm the position statement in compliance with 804 CMR § 1.05(8)(d)1, which requires each named respondent to sign the position statement “under the pains and penalties of perjury.”
“Rebuttals to the position statement are not required, but are strongly encouraged…” 804 CMR § 1.05(9)(a). While the regulations allow for pro se complainants to submit verbal rebuttals, attorneys must submit rebuttals in writing. 804 CMR § 1.05(9)(b)1.
Key Tip: Use the rebuttal to clarify and amplify the facts of the complaint and present cogent legal arguments. Do not simply reiterate the facts in the complaint.
The MCAD offers mediation services free of charge. 804 CMR § 1.06(1). The MCAD encourages parties to engage in productive communications regarding early resolution in their cases. In most cases, however, a Position Statement must be submitted prior to the mediation. This allows mediators to get a full picture of the parties’ arguments and makes the mediation process more effective. In the wake of COVID-19, the Commission suspended in-person mediation services and is currently conducting them via video, or telephonically if a party’s available technology is limited to telephone conferencing.
Key Tip: Do not come to a mediation without a command of the facts, a proposal, and authority to settle.
Pursuant to 804 CMR § 1.05(10)(a), “[t]he Commission may convene an investigative conference for the purpose of obtaining evidence, identifying issues in dispute, ascertaining the positions of the parties, and exploring the possibility of settlement.” Although the MCAD does not conduct investigative conferences in every case, they can be a valuable investigative tool. The complainant’s and respondent’s attendance at the investigative conference is mandatory. 804 CMR § 1.05(10)(e). The Investigator conducting the conference may question the parties about issues under investigation and may permit the parties to make a brief statement. 804 CMR § 1.05(10)(d). The MCAD is currently conducting investigative conferences telephonically. The Investigator will contact the parties regarding the logistics for the teleconference.
Key Tips: Remember that the investigative conference is a tool for the investigation and not a forum for adversarial posturing. Use the opportunity wisely to present relevant facts and evidence, and listen closely to the information the Investigator is seeking. If parties have questions about their obligation to provide materials to the other party, they should ask the Investigator for guidance. Further, attorneys should be mindful of their obligation to “refrain from including” or “partially redact” personal data identifiers from “all filings and exhibits submitted to the Commission.” 804 CMR § 1.21(4).
Upon conclusion of the investigation, the Investigating Commissioner issues an investigative disposition. 804 CMR § 1.08. Dispositions are generally served via U.S. mail. During the COVID telecommuting period, however, the Commission is also serving dispositions via email.
The types of investigative dispositions include: credit granted to another forum’s investigation; dismissal based on withdrawal of the complaint, lack of jurisdiction, settlement, or the public interest; and post-investigation substantive dispositions, also referred to as causal determinations. 804 CMR § 1.08(1)(a)-(f).
Causal determinations include, probable cause (“PC”), where the “Investigating Commissioner concludes…that there is sufficient evidence upon which a fact-finder could form a reasonable belief that it is more probable than not that respondent committed an unlawful practice”; lack of probable cause (“LOPC”), where the Investigating Commissioner finds that “there is insufficient evidence to support a determination of probable cause to credit the allegations in the complaint…” and the complaint is dismissed; and split PC and LOPC decisions. 804 CMR § 1.08(f)1.-3.
Appeals and Motions to Reconsider
If the Investigating Commissioner issues an LOPC determination, the complainant may appeal to the Investigating Commissioner “by filing a written request for a preliminary hearing with the Clerk’s Office within ten days after receipt of the notice of investigative disposition or dismissal.” 804 CMR § 1.08(b). A determination on an appeal of an LOPC finding may not be appealed to the Commission or to the Superior Court under G. L. c. 30A. 804 CMR § 1.08(4)(b)3.
In the event of a PC determination, a respondent may move for reconsideration in writing for “good cause at any time prior to the certification conference…or within 45 days of certification to public hearing… if no certification conference is held.” 804 CMR § 1.08(4)(a)1. If the Investigating Commissioner reverses or modifies a PC determination, the decision too is not appealable. 804 CMR § 1.08(4)(a)6.
The MCAD is currently conducting hearings on appeals telephonically.
Key Tip: Do not simply reiterate the facts, evidence and law presented in the course of the investigation. Use the appeal hearing and motions for reconsideration as an opportunity to present new facts or evidence unknown or unavailable during the investigation and/or material errors of fact or law.
If a PC determination is upheld, the next step in the process is a mandatory conciliation conference held with an Investigating Commissioner or designee. For more information on the post PC phases of the MCAD’s processes, see 804 CMR § 1.09 et seq.
We are facing challenging times that can create stress and uncertainty. While the MCAD understands the difficulties presented by COVID-19, we ask that attorneys comply with the regulations and keep informed of any COVID-19 related changes in the MCAD’s processes to ensure that their clients’ rights are well served. Finally, maintaining collegiality and patience with your fellow members of the bar and the Commission’s staff goes a long way in helping us all weather these unchartered waters.
Heather Hall has served as the Chief of Investigations for the MCAD since 2018. Previously, she served as the Deputy Chief Legal Counsel, then Director of Internal Investigations at the Middlesex Sheriff’s Office. She also served as an attorney in the legal offices of two other public safety agencies, an appellate Assistant District Attorney, and a law clerk. She extends special thanks to her colleagues Geraldine A. Fasnacht, Esq., Supervisor, Attorney Advisors Unit, and Nicole L. Leger, Esq., Supervisor, Unit 1, for their input on this article.
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).
The New Transgender Anti-Discrimination Law and Guidance Issued by the Attorney General’s Office and the MCADPosted: January 19, 2017
On July 8, 2016, Governor Baker signed into law An Act Relative to Transgender Anti-Discrimination, St. 2016, c. 134 (the “Act”), expanding Massachusetts’ protection against gender identity discrimination. Before the Act, the Transgender Equal Rights Act (“TERA”), St. 2011, c. 199, had prohibited gender identity discrimination in employment, housing, education, credit and lending. The Act now prohibits gender identity discrimination in places of public accommodation. G.L. c. 272, § 98, as amended by St. 2016, c. 134, § 3. It also requires places of public accommodation that lawfully segregate or separate access based on a person’s sex to “grant all persons admission to, and the full enjoyment of, such places of public accommodation, consistent with the person’s gender identity.” G.L. c. 272, § 92A, para. 2, as amended by St. 2016, c. 134, § 2 (emphasis added).
Guidance on the new law was issued on September 1, 2016, by the Attorney General’s Office (“AGO”) and the Massachusetts Commission Against Discrimination (“MCAD”). The MCAD issued clarified guidance on December 5, 2016, as discussed in more detail below. This article provides an overview of the AGO and MCAD guidance and recommended best practices.
Effective October 1, 2016, the Act amended G.L. c. 272, §§ 92A and 98 to include gender identity as an unlawful basis for discrimination in places of public accommodation. St. 2016, c. 134, § 5. A place of public accommodation is “any place whether licensed or unlicensed which is open to and accepts or solicits the patronage of the general public.” G.L. c. 272, § 92A. The definition is broad: a place of public accommodation can be either public or private, can provide products or services (regardless of whether it charges for products, services, or admission), and can include retail stores, restaurants, hotels, theaters, museums, libraries, public facilities, and sports and health clubs. AGO Guidance, p. 2. After a lawsuit filed by four religious organizations (which has been voluntarily dismissed), the AGO removed an unqualified reference to “houses of worship” from its list of examples of places of public accommodation. The MCAD similarly clarified that although the Act would not apply to religious organizations if such application “would violate the organization’s First Amendment rights,” places of public worship may be subject to the public accommodations law if they engage in, or their facilities are used for, a “public, secular function.” MCAD Guidance, p. 4.
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.” G.L. c. 4, § 7, Fifty-ninth. A person’s gender identity must be “sincerely held as part of the person’s core identity.” Id. It includes transgender, that is, “a person whose gender identity is different from that person’s assigned birth sex.” AGO Guidance, p. 1; MCAD Guidance, p. 6.
Examples of unlawful gender identity discrimination by places of public accommodation include: refusing or denying services; offering different or inferior services; advertising the refusal to accept business from or patronage of transgender or gender non-conforming individuals; providing false information about the availability of products, goods or services, facilities or admission; and harassment or intimidation. AGO Guidance, p. 2; MCAD Guidance, pp. 4-5. Moreover, it is now a crime, punishable by fine and/or imprisonment, and subject to a private right of action, for any individual to “aid or incite another in making a distinction, discriminating against or restricting an individual from a place of public accommodation” based on gender identity. MCAD Guidance, p. 4.
Use of Sex-Segregated Facilities
By far, the law’s most controversial provision concerns the use of sex-segregated facilities (e.g., bathrooms). Although places of public accommodation need not eliminate sex-segregated facilities, they must now allow patrons to use the facility most consistent with their gender identity. G.L. c. 272, § 92A, para. 2, as amended by St. 2016, c. 134, § 2. A person should be presumed to be using the facility most consistent with their gender identity if the person is not engaged in any improper or unlawful conduct. AGO Guidance, pp. 2-3. A person should not be presumed to be using the wrong facility based solely upon the person’s appearance. Id., p. 3.
If a place of public accommodation has a legitimate concern (i.e., about potentially improper or unlawful conduct) as to whether a person is using the appropriate facility, a limited inquiry of the person is recommended through a “private and discrete conversation.” Id., pp. 3-4. After confirming that the person is using the appropriate facility, the inquiry should end. Id., p. 4.
Improper or Unlawful Purpose
Gender identity cannot be asserted for an “improper or unlawful purpose.” G.L. c. 4, § 7, Fifty-ninth. Examples of such conduct include:
- loitering in a facility for the purpose of observing other patrons;
- harassment of employees or patrons;
- threats or violence;
- photographing or videotaping others without their permission; and
- violation of the law.
If a place of public accommodation has reasonable grounds to believe that a person is using the facility for an improper or unlawful purpose, it may take action consistent with its usual policies regarding removing persons who engage in improper conduct, including contacting law enforcement if warranted. Id.
Request for Proof of Gender Identity
Only in very limited circumstances is it permissible to request proof of gender identity. AGO Guidance, p. 4; MCAD Guidance, pp. 6-7. If a place of public accommodation, such as a health or sports club, regularly requires documentation of gender for all members, an individual’s gender identity may be documented by presenting “any one of the following:
- (1) a driver’s license or any other government-issued identification;
- (2) a letter from a doctor, therapist or other healthcare provider;
- (3) a letter from a friend, clergy or family member regarding the individual’s routine conduct such as dress, grooming and the use of corresponding pronouns; or;
- (4) any other evidence that the gender identity is sincerely held as a part of the person’s core identity.”
AGO Guidance, p. 4 (emphasis in original); MCAD Guidance, pp. 6-7 (providing additional examples). A place of public accommodation cannot use a request for documentation to harass, intimidate, embarrass or otherwise discriminate. AGO Guidance, p. 4; MCAD Guidance, p. 6.
The Act’s major change is to ensure that places of public accommodations are accessible to all persons, consistent with their gender identity, and that employees of public facilities are properly trained in the Act’s provisions. Most businesses updated their anti-discrimination policies following enactment of the TERA; similar updates are warranted in light of the Act. The following adapts the best practice recommendations in the updated MCAD guidance for places of public accommodation:
- Update employment policies and training materials to include a statement that discrimination and harassment based on gender identity is prohibited;
- Prohibit derogatory comments or jokes about transgender people and promptly investigate and discipline persons who engage in prohibited conduct;
- Update business and personnel records, payroll records, email systems and all other administrative records to reflect the stated name and gender identity of employees, clients and vendors;
- Use appropriate names and pronouns corresponding to each person’s stated gender identification in communications;
- Avoid gender-specific dress codes and permit attire that is consistent with each person’s stated gender identity;
- Develop a written policy concerning procedures for when a person undergoes gender transition and which promotes the confidentiality of the person’s transition; and
- Develop a policy that provides access to any sex-segregated facility consistent with a person’s gender identity and train all staff on the policy.
The Act is not expected to usher in a new round of litigation, in light of the TERA’s prior enactment and the public accommodation law’s liberal construction by courts and the MCAD. See e.g., Joyce v. Town of Dennis, 705 F. Supp. 2d 74, 83 (D. Mass. 2010). But, all places of public accommodation should review their policies and procedures to ensure that they are in compliance with the new law.
Andrea Peraner-Sweet is a partner at Fitch Law Partners LLP. Her practice focuses on general business litigation with an emphasis on employment litigation as well as probate litigation.