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Massachusetts Extends Discrimination Protection to Transgendered Employees

November 29th, 2011

On November 23, 2011, Governor Patrick signed a bill that protects transgendered individuals from discrimination in employment. “An Act Relative to Gender Identity,” makes Massachusetts the 16th state extend protected class status to its 33,000 residents who identify as transgender. The law will become effective on July 1, 2012. The passage of this bill follows Governor Patrick’s February 2011 executive order prohibiting discrimination against transgender people in state employment.

What does the law say?

A number of Massachusetts laws will be amended to add “gender identity” to the list of protected classes. Among these, General Law Chapter 151B, Sections 3 and 4, will authorize the Massachusetts Commission Against Discrimination to investigate and adjudication discrimination on the basis of “gender identity,” and will make employment discrimination of the basis of “gender identity” an unlawful practice, respectively.

What is “gender identity?”

According to the Act, gender identity is demonstrated through an individual’s “appearance, or behavior.” The Act makes clear that it does not matter whether “that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”

How does an individual “prove” that they identify as a certain gender?

According to the Act, an individual demonstrates gender-identity through the following:
• 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 that person’s core identity.
Thus, the Act provides that while medical evidence and consistent presentation are two ways an individual can demonstrate that their gender identity is sincerely held, “any other evidence” can be used to prove the same.

What does the law change?

Practically speaking, not much. More than 10 years ago, the MCAD extended protection to transgendered individuals under the existing sex discrimination and disability statutes. However, by formalizing “gender identity” as a protected characteristic, Massachusetts legislators have put employers on notice that they will be held accountable for discrimination against transgendered individuals.

Take-Aways:
• Ensure that managers understand that gender identity is a protected characteristic. Therefore, both managers and the company can be held liable if they know that an employee is being discriminated or retaliated against, or harassed because of their gender identity;
• The next time you revise your Employee Handbook, add “gender identity” to the list of characteristics that are protected by law, and by the Company;
• Handle a name change request from a transgender employee just as you would handle any employee’s name change request;
• Do not take any adverse action against an employee on the basis that other employees, customers, clients or patrons are uncomfortable around the transgendered employee;
• Do not refer to an employee with pronouns that are not gender-identity appropriate;
• Do not inquire about surgeries or medical procedures that an employee has undergone;
• Do not require an employee to provide legal or medical documentation that he or she identifies as a particular gender;
• Refer to an employee by his or her chosen name, not necessarily his or her legal name. In one MCAD case, the Commission found that an employer that insisted that a transgendered employee be called by her birth-name, “Raymond,” rather than by the name she identified with, “Rachel,” was evidence of transgender discrimination. That same Commission ruled that forcing an employee to dress in male clothing, because she was born male, was evidence of transgender discrimination.
• When in doubt, ask. Making sure a transgendered employee is not discriminated against is unchartered territory for many employers. A willingness to engage openly with transgendered employees can go a long way. Most transgendered employees will be welcome their employer’s good-faith efforts to understand and support their particular issues

– From a post by Allyson Kurker of the Kurker Law Group

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