Discrimination - Other - Massachusetts

Summary of differences between federal and state regulations

The federally protected classes in employment discrimination include race, color, religion, national origin, age (40 and over), sex (including pregnancy, sexual orientation, and gender identity), disability, and genetic information.

The Massachusetts unlawful discrimination law identifies the following protected classes for purposes of employment discrimination:

• Race (including natural & protective hairstyles),
• Color,
• Disability or handicap (physical or mental impairment which substantially limits one or more major life activities),
• Voluntary or involuntary commitment (for the treatment of mental illness),
• Age (over 40),
• Religious creed (any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religious institution or organization),
• Sex (including sexual harassment),
• Pregnancy (or a condition related to pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child),
• Sexual orientation (shall not include persons whose sexual orientation involves minor children as the sex object),
• Parental leave,
• Gender identity / Gender expression,
• Marital status,
• National origin,
• Ancestry,
• Active military (a person who is a member of, applies to perform, or has an obligation to perform, service in a uniformed military service of the United States, including the National Guard),
• Veteran status,
• Retaliation,
• Genetic information (any written or recorded identifiable result of a genetic test or family history pertaining to the presence, absence, variation, alternation, or modification of a human gene or genes), and
• Criminal record.

Workplace harassment based on membership in a protected class is also prohibited.

The Massachusetts Commission Against Discrimination (MCAD) enforces ALM GL ch. 151B, which makes it illegal to discriminate against prospective or current employees because of their membership in a protected class. The law applies to employers with six or more employees and anyone who employs domestic workers, regardless of the number of workers employed.

Employer defined

“Employer” does not include a club exclusively social, or a fraternal association or corporation, if not organized for private profit, nor does it include any employer with fewer than six persons in his employ, but does include the commonwealth and all political subdivisions, boards, departments and commissions.

Unlawful employment practices

The unlawful employment practices regarding genetic information and sexual orientation are essentially the same as those for other protected groups such as age, gender, or national origin.

Genetic information

Massachusetts General Law makes it discriminatory for an insurance company or employer to use genetic information in any way. The law aims to protect individuals’ right to keep genetic test results private, and ensures that genetic information will not be used to a person’s disadvantage by insurance companies or employers. The law prohibits disclosure of genetic test results without the individual’s consent, any requirement of genetic test results as a condition of employment or insurance, and discrimination by insurance companies based on genetic test results.

Employers are forbidden to use genetic information in making decisions relating to an employee or prospective employee. Employers may not require or induce disclosure of genetic information or submission to testing. Employers who require employees to undergo medical examination should confirm that the medical examination does not require the disclosure of genetic information. Employers should ensure that genetic information is not inadvertently provided to them, and that no employee’s file includes genetic information of any kind.

It is unlawful for an employer to:

• base employment decisions on genetic information (such as hiring or firing);
• use the results of a genetic test or genetic information to affect the terms, conditions, compensation, or privileges of a person’s employment;
• require or request genetic information as a condition of employment;
• offer an inducement to take a genetic test or disclose genetic information;
• question a person about previous genetic testing, or genetic information about themselves or family members; or
• seek, receive, or record genetic information.

Criminal record

It is illegal for an employer to ask certain questions about a job applicant’s or employee’s criminal record. Employers may not ask about, maintain a record of, or base any employment decision on the following information if they have requested it:

• Arrests or prosecution that did not lead to a conviction;
• A first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace;
• Misdemeanors where the date of conviction or the end of any period of incarceration was more than five years ago, provided that there have been no subsequent convictions within those five years;
• Any record of a court appearance which has been sealed under state law; or
• Anything pertaining to juvenile record, including delinquency and child in need of services complaints, unless the juvenile was tried as an adult in Superior Court.

An employer may not take action against an applicant or employee for answering an unlawful question untruthfully. An employer may ask:

• Have you ever been convicted of a felony?
• Within the last five years have you been convicted of, or released from incarceration for a misdemeanor which was not a first offense for drunkenness, simple assault, speeding, a minor traffic violation, an affray, or disturbing the peace?

It is also illegal for an employer to request from an applicant or employee a copy of a probation or arrest record, or to ask an applicant or employee to sign a release permitting access to such information. An employer that applies for and is granted access to criminal record information by the Massachusetts Criminal History Systems Board under the Criminal Record Information Act (CORI) may obtain some information on applicants’/employees’ criminal records. Access to information under CORI is limited to that which is necessary to perform the relevant criminal justice or statutory duties.

Treatment for mental illness

It is an unlawful practice for an employer to refuse to hire or employ, or to bar or discharge from employment (unless based upon a bona fide occupational qualification) any person by reason of his or her failure to furnish information regarding admission, voluntarily or involuntarily, to any public or private facility for the care and treatment of mentally ill persons, provided that he has been discharged and can prove by a psychiatrist’s certificate that he is mentally competent to perform the job for which he is applying.

No application for employment may contain any questions or requests for information regarding the admission of an applicant, voluntarily or involuntarily, to any public or private facility for the care and treatment of mentally ill persons, provided that the applicant has been discharged and is no longer under treatment directly related to such admission.

Transgender status

In addition to prohibiting discrimination based on gender identity, Massachusetts law specifically requires employers to allow transgender individuals to use restrooms, changing rooms, and locker rooms that correspond with their gender identities.

Crown Act

The Creating a Respectful and Open World for Natural Hair (“CROWN”) Act—which bans discrimination based on natural and protective hairstyles in all workplaces, public schools, and places of public accommodation (such as restaurants, retail shops and more) in Massachusetts. went into effect on October 24, 2022.

The CROWN Act specifically prohibits discrimination based on “traits historically associated with race,” including hair texture, hair type, and “protective hairstyles.” According to the new law, the term “protective hairstyle” includes, but is not limited to, braids, locks, twists, Bantu knots, hair coverings, and other formations.

State

Related information

Protected classes ezExplanation

Contact

Massachusetts Commission Against Discrimination

Regulations

Mass. General Laws Chapter 151B, Unlawful Discrimination Because of Race, Color, Religious Creed, National Origin, Ancestry, or Sex
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151b

ALM GL ch. 151B, § 4 Unlawful practices

ALM GL ch. 151B, § 3A Employers' policies against sexual harassment; preparation of model policy; education and training programs

ALM GL ch. 151B, § 1 Definitions

ALM GL ch. 4, § 7 (Sixty-second and Sixty-third) Definitions of "race" and "protective hairstyle"

Bill H.4554 Crown Act

Federal

Contact

Equal Employment Opportunity Commission (EEOC)

Regulations

See applicable discrimination topic.