Massachusetts has now joined a number of other states in banning discrimination based on gender identity.[1]
On November 23, 2011, Governor Deval Patrick signed a new law that prohibits, among other things, workplace discrimination on the basis of gender identity. Effective July 1, 2012, Massachusetts employees and job applicants will have legal recourse against employers who discriminate against them on the basis of their gender identity. The new law also bans discrimination against transgender people in housing, mortgage loans, and credit and creates a new type of protection under existing hate crime laws.
The statute defines “gender identity” broadly 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.
The law not only protects individuals who have undergone, or are seeking, sex reassignment surgery, but also protects all individuals who can establish that they consider their gender identity to be different from that received at birth.
The statute broadly states that gender identity:
may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held as part of the person’s core identity.
The law does not explain what aspects of one's identity, appearance, or behavior are "gender-related" and which are not. Employers will have to determine, often on a case-by-case basis, who is, and who is not, protected by the new law.
Action Employers Should Take Now
Massachusetts employers should immediately update their handbooks and their harassment and equal employment opportunity (“EEO”) policies to include “gender identity” as a protected class. Massachusetts employers are required to distribute their harassment and EEO policies annually to all employees. Accordingly, employers should ensure that gender identity is included in the policies distributed this year.
In addition, all anti-harassment training should include gender identity as a protected class.
Finally, employers in Massachusetts should train managers about gender identity discrimination and about what to do if they become aware of harassment or discrimination based on this or any other protected class. Such training should include sensitivity to all types of gender identity or expression.
Going Forward
Employers should tread carefully when confronted with a complicated gender-identity issue, such as requests to use a different name, bathrooms, or to alter a dress code. We recognize that these issues can be complex and that other employees may complain about legally required accommodations. If you have any questions about these or any other employment issues, or need up-to-date EEO and/or harassment policies, please do not hesitate to contact us.
[1] The other states are: California, Colorado, Connecticut, the District of Columbia, Hawaii, Iowa, Illinois, Maine, Minnesota, Oregon, Nevada, New Jersey, New Mexico, Rhode Island, and Vermont.