E-Alerts

Gender-Identity Discrimination: Guidance From Massachusetts Agencies

Within recent years, gender identity has been added as a protected category under various Massachusetts laws, including the state employment-discrimination and public-accommodations statutes. Employers and other organizations should be aware that the Massachusetts Commission Against Discrimination ("MCAD") and the Massachusetts Office of the Attorney General ("AG") have each issued formal guidance documents addressing issues arising under these laws.

Although the guidance documents are not formally binding, courts often give significant weight to the views of the MCAD and AG in deciding discrimination cases. Further, MCAD and AG investigators will almost certainly consider the guidance documents in evaluating allegations of discrimination and deciding whether to initiate litigation. Accordingly, Massachusetts employers and other organizations should carefully review the guidance documents and consider whether their policies and practices regarding gender identity need to be modified.

Overview Of MCAD And AG Guidance

The MCAD and AG guidance documents ("MCAD Guidance" and "AG Guidance") include detailed examples of conduct that may constitute unlawful gender-identity discrimination, as well as question-and-answer guides. While this article does not cover every aspect of the guidance documents, most of the key issues they address are outlined below.

Nature And Evidence Of Gender Identity

The MCAD and AG guidance documents describe 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." Importantly, individuals may be considered transgender - i.e., as having a gender identity different from the sex assigned to them at birth - whether or not they have undergone surgery, intend to undergo surgery, or have received other medical or psychological treatment related to their gender identity.

Massachusetts law also protects persons whose gender identity is consistent with their assigned sex at birth, but who do not adopt or express traditional gender roles, stereotypes, or cultural norms. For example, discrimination against a person who was designated as female at birth and now identifies as a woman, but who does not act, dress, or groom herself in a manner consistent with feminine stereotypes, is unlawful discrimination based on gender identity (as well as sex).

The MCAD Guidance indicates that, in most cases, it is not appropriate for an employer to request documentation of an individual's gender identity. However, when such evidence is legitimately needed, the MCAD Guidance states that an individual's gender identity may be demonstrated by any evidence showing that the gender identity is "sincerely held as a part of the individual's core identity." According to the MCAD, the precise meaning of this phrase will be developed as the case law evolves. The MCAD takes the general position, however, that evidence of consistent conduct over a period of time should be sufficient to demonstrate the sincerity of one's belief regarding his or her gender identity.

Similarly, the AG Guidance notes that, in the vast majority of cases, it is not appropriate for a place of public accommodation to request documentation of an individual's stated gender identity. However, such a request may be permissible for an organization that regularly and legitimately requires documentation of its members' genders, such as a health or sports club. In that circumstance, an individual's gender identity may be demonstrated by (1) a driver's license or other government issued identification; (2) a letter from a doctor, therapist, or other healthcare provider; (3) a letter from a friend, clergy, or family member regarding the person's routine conduct, such as dress, grooming, and use of corresponding pronouns; or (4) any other evidence that the gender identity is sincerely held as part of the person's core identity.

Employment Practices

M.G.L. Chapter 151B, which is enforced by the MCAD, prohibits discrimination in employment based on an individual's gender identity. In its Guidance, the MCAD provides examples of workplace actions that may constitute gender-identity discrimination:

• Demoting an employee, or assigning him or her a smaller office or less desirable work schedule, when the employee returns from a leave of absence to undergo gender-affirming surgery;
• Rejecting a job applicant who identifies as a man after a check of his employment references reveals that the applicant identified as a woman in previous employment;
• Refusing to respect an employee's request for use of preferred gender pronouns;
• Excluding an employee from meetings, office parties, or other work-related events on the basis of his or her transgender status;
• Failing to take prompt remedial action to stop harassment of an employee based on transgender status, if the employer is aware of the harassment;
• Denying an employee access to the restroom that corresponds to the employee's gender identity.

The MCAD Guidance also describes various types of employer actions that may help demonstrate an absence of discrimination based on gender identity:

• Communicating to employees that harassment of transgender employees will not be tolerated;
• Promptly and appropriately disciplining employees who violate this prohibition;
• Revising company records to reflect an employee's name change;
• Assisting a transgender employee in obtaining insurance coverage for surgery.

Public-Accommodation Issues

Since 2016, Massachusetts law has prohibited places of accommodation from discriminating against persons or otherwise denying services based on gender identity. The term "place of public accommodation" is broadly defined to encompass a wide variety of facilities that are open to the general public, including retail stores, hotels, restaurants, theaters, malls, sports stadiums, museums, libraries, public parks, beaches, and public roads. Businesses that provide services to the general public are also covered, including health and sports clubs, hospitals, loan companies, taxi companies, and insurance companies.

Both the AG and the MCAD Guidance provide examples of actions that may violate the prohibition against gender-identity discrimination in places of public accommodation. These include, for instance, refusing or denying services, or offering an inferior class or quality of service, because of a customer's gender identity; lying to or misleading someone about the availability of goods, services, or facilities because of his or her gender identity; and harassing or intimidating someone on the basis of gender identity.

The AG Guidance also addresses the use by transgender persons of "sex-segregated" facilities in places of public accommodation, such as restrooms, changing rooms, and locker rooms. In essence, transgender individuals must be permitted to use whichever facility is most consistent with their gender identity, as opposed to their assigned birth sex. Significantly, a place of public accommodation may not require a patron to use a unisex facility because of his or her gender identity.

The AG Guidance cautions that attempted misuse of sex-segregated facilities is exceedingly rare, and that individuals should be presumed to be using the facilities consistent with their gender, regardless of their appearance. However, the AG Guidance states that inquiry into a patron's gender identity may be appropriate if the person's behavior creates "reasonable worry" that the person is engaged in "improper or unlawful conduct," such as loitering for the purpose of observing others, harassing or threatening violence against an employee or patron, or photographing others without permission. In such situations, the AG Guidance suggests that the place of public accommodation ask the patron to leave, or call security or law enforcement if necessary.

Best Practices

Finally, the MCAD Guidance details various "best practices" for employers and places of public accommodation to comply with their legal obligations and foster an inclusive and welcoming environment:

• Revising non-discrimination, equal opportunity, anti-harassment, and other policies as necessary to specify that discrimination and harassment on the basis of gender identity are prohibited;
• Incorporating information about transgender individuals into diversity, anti-discrimination, and anti-harassment trainings;
• Updating e-mail systems, personnel records, payroll records, and other documents to reflect each employee's stated name and gender identity;
• Using names, preferred pronouns, and other gender-related terms appropriate to each person's stated gender identity;
• Avoiding gender-specific dress codes and permitting employees to dress in a manner consistent with their gender identity;
• Permitting access to sex-segregated facilities (e.g., bathrooms, locker rooms) based on each person's stated gender identity;
• Promptly investigating and addressing any complaints of harassment or other discrimination based on transgender status.

Recommendations For Employers

We recommend that employers and other organizations carefully review the MCAD and AG Guidance with managers, supervisors, human resources representatives, and any other relevant personnel. In conjunction with that review, organizations should closely consider the MCAD's suggested best practices, as detailed above.

If you have any questions about the MCAD and AG Guidance or need assistance with any other gender-identity-related issues, please feel free to contact us.