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Massachusetts Anti-Discrimination Agency Issues Guidance on Gender Identity Discrimination

Recently, the Massachusetts Commission Against Discrimination (MCAD) published guidance on gender identity discrimination, which the Massachusetts Fair Employment Practices Act (commonly known as “Chapter 151B”) has prohibited since July 1, 2012.  The guidance and statute, however, simply codify the position MCAD has taken since 2001.

Gender identity is statutorily 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.”  Thus, it refers to a person’s internal sense of their own gender and its expression.  Gender identity encompasses transgender individuals, i.e., individuals whose gender identity is different from the sex assigned to them at birth.  The statute also prohibits discrimination based on gender expression, which refers to a person’s adoption or expression of gender roles, stereotypes, or cultural norms that are not consistent with their assigned sex at birth.

The MCAD’s guidance makes clear that no employee is required to have any specific gender affirming surgery or surgery of any kind to have their gender entity respected in the workplace.  Employers generally may not request documentation of an individual’s gender identity.  Employers also may not retaliate against any individual who has opposed a discriminatory practice, filed a charge of discrimination, or testified, participated in, or assisted with a MCAD investigation, proceeding or hearing relating to gender identity discrimination.  The law, however, does not protect a gender-related identity that is “asserted for any improper purpose,” such as to obtain an otherwise unavailable employment-related benefit.  Furthermore, nothing in Chapter 151B prohibits employers from designating restrooms by gender.  Employers, however, may not prohibit an individual from using a restroom or other sex-segregated facility consistent with their gender identity.

In order to ensure compliance with the guidance and statute, employers are encouraged to do the following:

  • review and revise their policies and practices to make clear that discrimination and harassment based on gender identity and gender expression are prohibited;
  • update personnel and other administrative records to reflect an employee’s stated name and gender identity;
  • use appropriate names and pronouns corresponding to an employee’s stated gender identity in communications;
  • avoid gender-specific dress codes; provide access to any sex-segregated facility (g., bathroom) based on the employee’s stated gender identity; and
  • including gender identity and expression discrimination as part of their regular management training on discrimination, including stressing the importance of getting to know their colleagues and not making assumptions regarding gender identity.

When evaluating a claim of hostile work environment based on gender identity, the MCAD stated that it considers the employer’s evidence of its support for the employee.  Employers are thus advised to make as many good faith efforts as they can to demonstrate their commitment to maintaining a workplace free of unlawful harassment or discrimination based on gender identity.

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