Open to the PublicEffective 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:

  1. Single-occupancy gender-neutral (unisex) facilities; and
  2. 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.

Photo: Day Donaldson via Flickr (CC by 2.0)
Photo: Day Donaldson via Flickr (CC by 2.0)

The Zika Virus, an illness transmitted primarily by mosquitoes and also, less frequently, through blood transfusions and sexual contact has certainly been in the news recently.  The U.S. Centers for Disease Control (CDC) has issued travel warnings alerting people to the risk of travel to more than two dozen countries in the Caribbean and South and Central America.   More than a dozen states have reported cases of the virus.  Due to the possibility of risk of birth defects if pregnant women are infected, even female members of the U.S. Olympic Team are expressing concern about travel to Brazil this summer.

Employers are asking what precautions they can and should take to protect employees, especially those who travel to foreign locations as part of their jobs.  The warnings are certainly of concern, especially to women of child-bearing age, but it is important that employers not panic and overreact.

As with any medical issue, great care must be taken to protect the privacy and rights of employees and prospective employees.  Laws of particular import include the following:

  • Americans with Disabilities Act (ADA): The ADA prohibits an employer from requiring medical examinations of current employees absent a reasonable belief that the employee has a medical condition or disability which poses a direct threat to the employee’s own safety or the safety of others in the workplace. Due to the lack of objective evidence that the virus can be spread through casual contact, there seems to be no basis to require medical examinations.
  • Occupational Health and Safety Act (OSHA): OSHA does permit employees to refuse to perform job tasks when they have a reasonable basis to believe that there is a threat of imminent death or serious injury.  The CDC has indicated that the spread of Zika can be eliminated with appropriate precautions, even in countries affected by the virus except when the employee is pregnant.  Employees may therefore not be reasonable in asking not to be sent to affected countries.  A pregnant employee’s request of this nature, however, may be deemed a reasonable accommodation.
  • Title VII of the Civil Rights Act of 1964 (Title VII): Although an employer may want to agree to a pregnant employee’s request to be excused from travel to affected nations, it would not be a good idea for an employer to ban pregnant employees, spouses of pregnant employees or individuals planning to become pregnant from overseas travel.  The employer’s best course of action is to educate employees about the risks and then let them make their own healthcare decisions.

The best course of action for employers, especially those who have employees traveling to the Caribbean or South or Central America, is to provide education about risks and precautions to take and to refer employees to the CDC website for information. Such employers should also reinforce sick leave and FMLA policies and make sure supervisors are knowledgeable about illnesses and require sick employees to take time off from work. Finally, employers should consider allowing employees, especially those expecting children or planning to get pregnant, to opt-out of travel, at least until  more is known about the virus, its genesis and its long term affects.

The New Hampshire Commission for Human Rights has released data on discrimination charges filed by employees in 2013.  Last year, the Commission received 222 discrimination charges against employers.  This number was slightly down from the year before at 257.  Retaliation across all categories topped the list at 93 claims.  Following closly behind with 89 charges was disability discrimination.  There were 64 claims based on sex discrimination and 31 claims based on age.  Of the sex discrimination claims, the charges included 17 gender, 36 harassment, and 11 pregnancy.

The Commission found probable cause to proceed with a hearing in 3 cases — 2 for disability discrimination and 1 for sex (pregnancy) discrimination.   No probable cause was found in 37 of the cases.  Additionally, 13 cases were removed to federal court; 34 were removed by the complainant to state court and 2 were removed by the respondent to state court.  The Commission closed 199 cases in 2013.

With the report of these statistics, it is a good time for employers to review, redistribute, and reinforce their anti-harassment and non-discrimination policies to all employees.  Employers should confirm their handbooks cover all protected categories under federal and state laws.  Companies should also provide training for employees on their nondiscrimination and anti-harassment policies.  Supervisors and managers need to be trained on the policies as well as receive an overview of the laws relevant to the workplace.  All of these steps can help companies safeguard against liability for harassment and discrimination in the workplace.

The Massachusetts Supreme Judicial Court (SJC) has held an employer is prohibited from discriminating against its non-disabled employee based on that employee’s association with an immediate family member with a disability or handicap under Chapter 151B, the state’s antidiscrimination law.  This decision expands the scope of employer liability.

In Flagg v. Alimed, Inc (July 19, 2013),  Mark Flagg alleged that he was terminated from his employment because of his wife’s disability.  In 2007, Flagg’s wife underwent surgery for a brain tumor.  Flagg became responsible for caring for the couple’s children, which included his periodically leaving work for a short period of time to pick up his daughter and then returning to work to finish the day.  During those times he left, Flagg did not punch out, which he claims his manager knew.  Shortly after his wife’s recurrence of the brain tumor, Flagg was terminated for failure to punch out.  Flagg alleged the company really terminated him because it did not want to pay for his wife’s costly medical treatment.

Chapter 151B prohibits employment discrimination in Massachusetts and section 4(16) specifically prohibits discrimination based on handicap.   G.L. c. 151B, sec. 4(16).  At issue before the SJC was whether the statute extended to include “associational discrimination,” which does not specifically appear in its text.  The SJC explained that the term “associational discrimination” refers to a plaintiff who, “although not a member of a protected class himself or herself, is the victim of discriminatory animus directed toward a third person who is a member of the protected class and with whom the plaintiff associates.”

Answering in the affirmative, the SJC determined that a broad reading of the statutory language to include associational discrimination furthered the state’s general purpose to eliminate workplace barriers based on discrimination.  It noted that the definition of “handicap” includes (1) persons with a physical or mental impairment that substantially limits one or more major life activities or (2) persons with a record of impairment, as well as covers those (3) persons “being regarded as having such impairment.”  G.L. c. 151B, sec. 1(17).  It reasoned that this third prong protects those who are not actually impaired but who may be the victim of “stereotypic assumptions, myths, and fears regarding such limitations.”  For this reason, “[w]hen an employer takes adverse action against its employee because of his spouse’s impairment, it is targeting the employee as the direct victim of its animus, inflicting punishment for exactly the same reason and in exactly the same way as if the employee were handicapped himself.”

In its holding, the SJC afforded substantial deference to the Massachusetts Commission Against Discrimination (MCAD), which has adopted associational discrimination under c. 151B.   It also looked to analogous federal law under Title VII and the Rehabilitation Act to support the ruling.  In a footnote, the SJC noted that it was limiting claims for associational discrimination to immediate family members only.  It should also be noted that the Americans with Disabilities Act (ADA) prohibits “excluding or otherwise denying equal jobs or benefits” because of the known disability of an individual with whom the employee is “known to have a relationship or association.”

Employers should  train all managers, supervisors, and employees on this protected status and other anti-discrimination laws.  Companies should also review and update their policies.

This post was originally published on April 12, 2013.  In light of the recent Supreme Court Decision on DOMA, McLane wanted to share this post again.

For at least the next few months, DOMA is the law of the land, and the United States government will continue to define “marriage” as a “legal union between one man and one woman as husband and wife,” and “spouse” as a “person of the opposite sex who is a husband or a wife.” DOMA, however, appears to be on its last leg. The demise of DOMA will likely trigger significant policy and benefit changes for employers. Here is a list of four potential issues to keep in mind in the coming months as DOMA’s fate continues to unfold.

  1. Health Insurance – Many employers provide health insurance benefits to their employees, and their employees’ federally-recognized spouses and children. These benefits are considered a non-taxable fringe benefit under the Internal Revenue Code and exempt from income tax liability. Health insurance benefits for an employee’s domestic partner or same-sex spouse, however, while still a fringe benefit, is not exempt from income tax liability, and instead imputed to the employee as income. If DOMA is overturned, insurance benefits provided to same-sex spouses will no longer be imputed as income, and will instead be exempt from income tax liability.
  2. Title VII of the Civil Rights Act – While New Hampshire and Massachusetts recognize sexual orientation as a protected class and therefore afford some protections to employees against discrimination based on sexual orientation, the Civil Rights Act does not. It does, however, prohibit discrimination based on gender. If the DOMA-definitions of “marriage” and “spouse” are overturned, some experts argue that employers could potentially be held liable for gender discrimination if they deny benefits to an employee simply because he or she is in a same-sex marriage. Employers should therefore take active steps to ensure that all existing policies and procedures provide equal treatment, benefits, and opportunities to employees regardless of the gender of their spouse.
  3. FMLA – Employers are not presently required to provide employees twelve weeks of unpaid leave in order to care for a sick same-sex spouse. In fact, should employers elect to provide employees with such leave, it does not count toward that employee’s twelve weeks. If DOMA is struck down, all employees will be allowed to take leave under FMLA to care for a same-sex spouse.
  4. 401(k) and 403(b) Plans – Employees with same-sex spouses participating in 401(k) and 403(b) plans that require spousal consent to name a non-spousal beneficiary are currently free to name anyone other than their spouse as the beneficiary. If DOMA is overturned, employees with same-sex spouses will gain the same spousal protects provided to all other employees. This raises questions regarding the status of non-spousal beneficiaries designated before DOMA was overturned. Will these designations stand? Will the newly-recognized same-sex-spouse automatically undo the prior designation and become the new beneficiary? Employers should therefore encourage employees with same-sex spouses to revisit their beneficiary designations to ensure their beneficiary designations are as they intended.

 

On the heels of narrowing the definition of “supervisor” for purposes of liability under Title VII of the Civil Rights Act of 1964, a divided U.S. Supreme Court dealt a second major blow to employees this week by making it harder for them to prove retaliation claims under that same statute.

University of Texas Southwestern Medical Center v. Nassar dealt with the issue of defining the proper standard of causation for claims of retaliation under Title VII. Like basic tort claims, “causation” is a required element of successfully proving a case of discrimination or retaliation under Title VII:  the employee’s injury must be caused by the employer’s discriminatory animus or a desire to retaliate.

In this case, there were two options at the Court’s disposal: (i) the easier-to-satisfy “motivating factor” test; or (ii) the more-difficult-to-satisfy “but-for” standard. Under the motivating factor test, an employee could prove retaliation by showing that their decision to report or notify the employer of possible discrimination was a motivating factor in the employer’s decision to terminate them or take some other adverse employment action. On the other hand, under the but-for causation standard, the employee would have to prove that they would have retained their job or avoided some other adverse employment action in the absence of the employer’s retaliatory intent.

The plaintiff in Nassar – a physician of Middle Eastern descent at the University of Texas Southwestern Medical Center – had relied on the motivating factor test in prevailing against the hospital at the trial court level, and argued for its application before the Supreme Court. The U.S. Government also urged the Court to adopt the motivating factor test as the proper causation standard.  Unfortunately for this plaintiff, and employees bringing retaliation claims in the future, a narrow majority of the Court disagreed and found that the stricter but-for test applied.

In finding that but-for was the proper causation standard, the Court relied upon both the text of Title VII and the structure of how the statute is written.  The Court emphasized that Congress was deliberate in placing the “motivating factor” standard in the section of the statute that deals with discrimination – separate from the section that addresses retaliation.  Had Congress intended to apply the motivating factor standard to retaliation claims, it could have and would have written the statute that way, as it has in other discrimination statutes.  The Court also elected to disregard the Equal Employment Opportunity Commission’s interpretation and guidance on the proper standard.

The result of Nassar is that employees must prove claims of Title VII discrimination and retaliation under two different causation standards, the new standard for retaliation being much more difficult to satisfy.  Heightening the causation standard for retaliation claims may also curb the increasing influx of retaliation lawsuits filed in recent years, which the majority recognized as a problem that was impacting the “fair and responsible allocation of resources in the judicial and litigation systems.”  For employers, the decision is a major victory.  From a litigation perspective, it will significantly limit an employee’s ability to successfully prove that they were retaliated against.  From a practical standpoint, if an employee complains about workplace harassment or discrimination, and is later terminated for legitimate reasons unrelated to his or her complaint, employers can find some comfort in the fact that this termination is now more likely to hold up in court against a retaliation suit.  Clearly, employers should still remain cautious when making employment decisions about employees that have arguably blown the whistle about their working conditions, but this decision gives employer’s more flexibility.  Moreover, employers must still be diligent in documenting and communicating legitimate personnel issues to employees, so those employees will understand why certain adverse action is taken against them.

For at least the next few months, DOMA is the law of the land, and the United States government will continue to define  “marriage” as a “legal union between one man and one woman as husband and wife,” and “spouse” as a “person of the opposite sex who is a husband or a wife.”  DOMA, however, appears to be on its last leg.  The demise of DOMA will likely trigger significant policy and benefit changes for employers.  Here is a list of four potential issues to keep in mind in the coming months as DOMA’s fate continues to unfold.

 

  1. Health Insurance – Many employers provide health insurance benefits to their employees, and their employees’ federally-recognized spouses and children.  These benefits are considered a non-taxable fringe benefit under the Internal Revenue Code and exempt from income tax liability.  Health insurance benefits for an employee’s domestic partner or same-sex spouse, however, while still a fringe benefit, is not exempt from income tax liability, and instead imputed to the employee as income.  If DOMA is overturned, insurance benefits provided to same-sex spouses will no longer be imputed as income, and will instead be exempt from income tax liability.
  2. Title VII of the Civil Rights Act – While New Hampshire and Massachusetts recognize sexual orientation as a protected class and therefore afford some protections to employees against discrimination based on sexual orientation, the Civil Rights Act does not.  It does, however, prohibit discrimination based on gender.  If the DOMA-definitions of “marriage” and “spouse” are overturned, some experts argue that employers could potentially be held liable for gender discrimination if they deny benefits to an employee simply because he or she is in a same-sex marriage.  Employers should therefore take active steps to ensure that all existing policies and procedures provide equal treatment, benefits, and opportunities to employees regardless of the gender of their spouse.
  3. FMLA – Employers are not presently required to provide employees twelve weeks of unpaid leave in order to care for a sick same-sex spouse.  In fact, should employers elect to provide employees with such leave, it does not count toward that employee’s twelve weeks.  If DOMA is struck down, all employees will be allowed to take leave under FMLA to care for a same-sex spouse.
  4. 401(k) and 403(b) Plans – Employees with same-sex spouses participating in 401(k) and 403(b) plans that require spousal consent to name a non-spousal beneficiary are currently free to name anyone other than their spouse as the beneficiary.  If DOMA is overturned,  employees with same-sex spouses will gain the same spousal protects provided to all other employees. This raises questions regarding the status of non-spousal beneficiaries designated before DOMA was overturned.  Will these designations stand?  Will the newly-recognized same-sex-spouse automatically undo the prior designation and become the new beneficiary?  Employers should therefore encourage employees with same-sex spouses to revisit their beneficiary designations to ensure their beneficiary designations are as they intended.