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MCAD Releases Guidance on Gender Identity Discrimination

On September 1, 2016, the Massachusetts Commission Against Discrimination (MCAD) released Guidance Regarding Gender Identity, which replaces the MCAD’s December 2015 Transgender Law Advisory. The new guidance explains the protections against discrimination based on gender identity that were enacted by Senate Bill 2407, An Act relative to transgender anti-discrimination, signed into law on July 6, 2016, by Massachusetts Governor Charles D. Baker.

With regard to employment, the guidance explains that it is an unlawful discriminatory practice for an employer to discriminate against an employee or job applicant based on gender identity in recruitment, hiring, firing, discipline, promotion, wages, job assignments, training, benefits, and other terms and conditions of employment. Types of discrimination may include unwelcome verbal or physical conduct, such as derogatory comments, jokes, drawings or photographs, touching or gestures. The guidance provides several illustrative examples of the prohibited discrimination:

  • An employee takes a leave of absence to obtain gender-affirming surgery, and after she returns from leave, her employer reduces her hours, downsizes her office, and demotes her.
  • A job applicant who identifies as a man is rejected solely because the employer learns after checking his employment references that the applicant identified as a woman in previous employment.
  • A man is constantly harassed or made fun of by his supervisors for mannerisms perceived to be feminine.
  • A supervisor ridicules a transgender subordinate and refuses to respect the employee’s request for gender appropriate pronouns.
  • A transgender employee is consistently excluded from office meetings, parties, and work-related events to which all other employees are invited.
  • A transgender employee notifies his employer that his co-workers persistently mock and deride him because of his gender identity, and the employer fails to take prompt remedial action to stop the harassment.
  • An employer denies an employee access to the restroom that corresponds to the employee’s gender identity.

Read the Guidance