Effective October 1, 2016, “places of public accommodation” in Massachusetts are prohibited from discriminating against persons based on their gender identity. Under this new anti-discrimination law signed by Governor Charlie Baker this summer, places of public accommodation must allow individuals to use or access gender-segregated areas such as bathrooms and locker rooms consistent with their gender identity.
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,” including:
- Hotels, inns, motels, campgrounds, resorts;
- Restaurants, bars, and other establishments serving food or drink;
- Theaters, concert halls, sports stadiums, and other places of entertainment;
- Auditoriums, convention centers, lecture halls, houses of worship, and other places of public gathering;
- Sales and rental establishments, including stores, shopping centers, automobile rental agencies, and other retail establishments;
- Service establishments, including laundromats, dry-cleaners, banks, barber shops, travel agents, gas stations, funeral parlors, employment agencies, and providers of professional services such as lawyers, doctors, dentists, accountants, and insurance agents;
- Health care facilities, including dental and medical offices, pharmacies, clinics, hospitals, nursing homes, and other health facilities;
- Transportation vehicles of all types and transportation stations, terminals, depots, platforms and facilities appurtenant thereto;
- Museums, libraries, galleries, and other places of public display or collection;
- Parks, zoos, amusement parks, and other places of recreation;
- Child care centers, senior citizens centers, homeless shelters, food banks, adoption agencies, and other social service establishments;
- Gymnasiums, health spas, bowling alleys, swimming pools, beaches, golf courses, and other places of exercises or recreation.
The Massachusetts Commission Against Discrimination (MCAD) oversees enforcement of this law. It is authorized “to adopt, promulgate, amend, and rescind rules and regulations or to formulate policies and make recommendations to effectuate” its purposes.
Gender identity has been a protected category in the Commonwealth in employment, education, and housing since legislation in 2011. Employers with six or more employees are prohibited from discriminating against transgender individuals in the workplace. Following the adoption of that law, MCAD issued a fact sheet that advised employers that denying employees permission “to use the bathroom of one’s identifying gender could be viewed as discriminatory.”
The EEOC has also issued a fact sheet entitled “Bathroom Access Right for Transgender Employees Under Title VII of the Civil rights Act of 1964.” Under that publication, the EEOC takes the position that discrimination based on transgender status is sex discrimination in violation of Title VII. Thus, the EEOC would find the denial of equal access to a common restroom of the employee’s gender identity or requiring an employee to undergo or provide proof of surgery or other medical procedure as sex discrimination. That publication also cites to OSHA’s A Guide to Restroom Access for Transgender Workers. OSHA advises that the best restroom policies include options, which employees may choose from, and include:
- Single-occupancy gender-neutral (unisex) facilities; and
- Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
OSHA has noted that, “Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.”
Some businesses have expressed safety concerns about people accessing segregated facilities like bathrooms or locker rooms for improper reasons. In the education setting, my colleague Linda Johnson has written about the U.S. Supreme Court’s decision on August 3, 2016 to put on hold a lower federal court ruling that a transgender male student be allowed to use the bathroom of his gender identity until the Supreme Court rules on the School Board’s petition for appeal. My colleague Adam Hamel has also written about laws, and proposed laws, which seek to limit access to public restrooms based on the gender assigned to a person at birth and what those “bathroom bills” mean for employers.
Massachusetts employers who open their doors to the public should train their employees on this new law. Employees need to understand these gender identify protections for members of the public accessing their facilities. Companies should also review their non-discrimination policies to ensure that they are up-to-date.