State vs. federal anti-discrimination laws

By Beth O’Neal, Esq.

I am the Human Resources/Payroll Manager in a relatively small Massachusetts company (with 28 employees), and someone recently told me that we have to follow federal law regarding discrimination in the workplace, as well as the Massachusetts anti-discrimination laws. Is this true, and if it is, are there any differences in the laws?

With the size of your workforce, you do indeed have to abide by both federal and Massachusetts laws regarding discrimination in the workplace. The applicability of these laws is based upon the number of employees you have – Massachusetts law, applying to employers with 6 or more employees, and federal law, applying to employers with 15 or more employees, as to certain laws, or 20 and more employees, as to others. With 28 employees, you are covered by all of them.

In terms of the differences, you really need only be concerned with Massachusetts law, because it provides greater rights to more protected classes than does federal law. In fact, as of July 1, 2012, a new protected class will be recognized in Massachusetts, that being based upon “gender identity.” The chart below identifies the protected classes under Massachusetts law, and whether the class is also recognized under federal law.



The new Massachusetts law raises some potential challenges and unanswered questions. To start, as with members of all protected categories, covered employers are prohibited from refusing to hire, discharging or otherwise discriminating against transgender individuals in their compensation and in their terms, conditions, or privileges of employment. Covered employers are also forbidden from retaliating against any individual for taking certain actions, such as filing a complaint or objecting to prohibited acts of discrimination.

The newly passed law defines “gender identity” as a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history; care or treatment of the gender-related identity; consistent and uniform assertion of the gender-related identity; or any other evidence that the gender-related identity is sincerely held, as part of a person’s core identity, provided that gender-related identity shall not be asserted for any improper purpose.

Now to the potential challenges and questions, the practical implications of which are not answered by the definition. If an individual, assigned a male sex at birth identifies in adult life as a woman, wants to dress and present as a female, including make-up, hair and jewelry, must the employer permit the employee to do so? If the same employee chooses to use a female first name, must an employer accommodate this choice and how far must the employer go (e.g., new business cards, stationery, name and directory plaques)? In a matter I once worked on, before passage of the law, an employee was beginning the process of transgendering, and chose to change his name from “Paul” to “Zoe.” This was something that the employee’s co-workers struggled with, as the chosen name was quite different from the given name. Their discomfiture caused them to avoid the employee, which was unsettling for all and could now be potentially unlawful. Does an employer have a duty to accommodate the employee’s request to use the ladies’ restroom or locker room? Will female co-workers claim that they are being subject to a hostile work environment in such circumstances? Will employers be required to bear the expense of installing a separate, single-stall unisex bathroom to avert this?

These questions, and many others that may arise, present practical concerns that employers are likely to grapple with in light of the new law. When faced with these sensitive issues, employers should consider conferring with legal counsel to assist in insuring that the matters are handled properly, and the rights of all are respected. At a minimum, employers should amend their employment handbooks, personnel policies or other materials published for the benefit of employees and/or supervisors, to update the categories of protected classes to include the newly recognized class, and consider providing training to supervisory and management staff.

Beth O’Neal, Esq., is a partner in the Boston law firm of Masterman, Culbert & Tully LLP. Send questions to meo@mctlaw.com.


Published in Cape & Plymouth Business January 2012