Question 1

Can I be fired without a reason?

Accepted Answer

Massachusetts is an at-will employment state. This means that an employee can be terminated with or without a reason unless they have an employment contract that says otherwise.

There are some important exceptions. You cannot be fired for an unlawful reason.  Unlawful reasons include:
Discrimination based on your membership in a protected class.  Protected classes include race, gender, national original, disability, sexual orientation, and more.
Retaliation for protected activity.  Protected activity includes taking federal or state family medical leave, filing for workers compensation, or objecting to or complaining about wage and hour violations or discrimination or sexual harassment.  There are other protections specific to certain kinds of workplaces.  For example, there is a statute that protects health care workers from retaliation for reporting violations, and another that protects public employees from complaining about or refusing to engage in unlawful activities.
Minority shareholder freeze-outs: If you are both an employee and a minority owner of a closely held company, firing you without a good reason could be unlawful as a breach of fiduciary duty.

Question 2

What is wrongful termination?

Accepted Answer

Even though Massachusetts is an at-will employment state, there are some exceptions.  A wrongful termination is one that is motivated by any of the unlawful reasons for firing an employee.  These include:
Discrimination based on your membership in a protected class.  Protected classes include race, gender, national original, disability, sexual orientation, and more.
Retaliation for protected activity.  Protected activity includes taking federal or state family medical leave, filing for workers compensation, or objecting to or complaining about wage and hour violations or discrimination or sexual harassment.  There are other protections specific to certain kinds of workplaces.  For example, there is a statute that protects health care workers from retaliation for reporting violations, and another that protects public employees from complaining about or refusing to engage in unlawful activities.
Minority shareholder freeze-outs: If you are both an employee and a minority owner of a closely held company, firing you without a good reason could be unlawful as a breach of fiduciary duty.
It can be difficult to tell what motivated a termination, and whether it really was based on one of these unlawful reasons.  If you think you may have a claim, it is important to speak to an employment attorney as soon as possible.

Question 3

What is discrimination?

Accepted Answer

Any time you are treated differently than other people in your workplace, you may wonder if it is discrimination.  What you need to know is that at will employment (Massachusetts law) allows employers to treat people differently as long as it is not based on discrimination.

Massachusetts discrimination laws protect specific groups of people, called "protected classes."  Your employer cannot discriminate against you based on your sex, race, national origin, disability or perceived disability, sexual orientation, gender identity, age, pregnancy, and certain other things.

In order to have a legal claim for discrimination in the workplace, there has to be an "adverse employment action."  Usually that shows up as a termination, but it can be a demotion or some other action that affects your compensation and status negatively.  A poor performance review by itself is not generally considered an adverse action.

You can, however, report the discrimination to someone in the company and ask them to address it.  A good faith report of discrimination or unlawful harassment is a protected activity under the law, and your employer is not allowed to take action against you in retaliation for making the complaint.

Question 4

How to bring a discrimination or harassment lawsuit

Accepted Answer

Any claim that arises under the Massachusetts or federal discrimination laws must follow the basic steps below.  This includes claims for discrimination, as well as sexual harassment claims and any claims of retaliation for reporting discrimination or harassment.

First, the claim must be filed in either the Massachusetts Commission Against Discrimination ("MCAD") or the federal Equal Employment Opportunity Commission ("EEOC").  Most discrimination claims are recognized under both federal and state law, in which case you can file the claim in either agency.  If your claims are only state law claims, you should file with the MCAD.  These claims must be filed within 300 days of the discriminatory or retaliatory act.

​Second, you will have an opportunity to decide whether you want to litigate the claim in the agency, or withdraw it and file in state or federal court.  You can do this after 90 days if you are in MCAD, and after 180 days if you are in the EEOC.  If you file on your own (without a lawyer) this is a good time to talk to an employment lawyer about the strength of your claims and the pros and cons of going to court instead of remaining with the MCAD or EEOC.

Question 5

What are protected classes?

Accepted Answer

Federal and state anti-discrimination laws prohibit discrimination based on your membership in a "protected class."  Protected classes include race, color, religion, national origin, sex, age (over 40), pregnancy, disability, and perceived disability.

In addition to these federally protected classes, Massachusetts employment law prohibits discriminating on the basis of:
Gender Identity 
Sexual Orientation 
Genetic Information
Ancestry
Being "protected" does not make you immune from termination, but it does mean that if you raise a question about discrimination based on one of these characteristics, your employer will need to demonstrate a legitimate, non-discriminatory reason for its actions.

You could be in more than one protected class, and in fact many people are.  The discriminatory motive could be based on just one, or on a combination.  For example, if you are older and have a medical condition, the underlying issue could be both age and disability.

Question 6

Am I protected if I report discrimination?

Accepted Answer

Reporting discrimination in the workplace is a protected activity under the anti-discrimination laws.  If you have a good faith belief that you are being treated differently from others based on your race, sex, age, disability, or any other protected class, your employer is not allowed to retaliate against you for making that complaint or report.

This is true even if the employer investigates and concludes that there has been no unlawful discrimination, as long as you had a good faith belief that there was.

Protected activity can include filing a charge of discrimination with the EEOC or the MCAD, making a report to management or human resources, or even assisting another employee in raising a concern about discrimination.

Retaliation under the law is a materially adverse employment action (i.e., a termination or demotion) that you can prove was motivated by retaliation for your activity, as opposed to some other business or performance reason.

Question 7

What is a hostile work environment?

Accepted Answer

A workplace that feels hostile is something we have all probably experienced at one time or another.  A true "hostile work environment" under the law, however, has a narrower meaning.

An environment that is hostile due to harassment targeted at someone due to their race, age, disability, or other protected class, is simply another form of discrimination.

A work environment that is hostile due to pervasive sexual harassment is both a form of discrimination and a separate claim under the sexual harassment laws.

In addition to being unlawfully motivated, the behavior has to be both offensive and pervasive to constitute a "hostile work environment" under the law.  A stray remark by a co-worker is likely not enough.  A repeated practice of sharing obscene or derogatory images in the workplace, or of racial epithets, most likely is.

Most situations fall somewhere in the middle.  If you believe you are experiencing discriminatory harassment at work, you should consult with an employment lawyer to understand whether it is legally actionable.

Question 8

Does an employer have to accommodate your disability?

Accepted Answer

If you have a disability, and could perform the essential functions of your job with reasonable accommodations, your employer has an obligation under the ADA and corresponding Massachusetts law to make those accommodations.

You have to start the process by requesting an accommodation.  Your employer may ask for more information about your condition, which you should provide if it is reasonably connected to your request.

The employer does not have to accommodate if the accommodation would create an undue burden on the employer.  They also do not have to make the accommodation if it would not allow you to perform the "essential functions" of your job.

What is reasonable, and sometimes what are "essential functions" of a job, are usually very fact specific.  it is a good idea to talk to your health care provider about what you can and can't do at work, and with an employment lawyer to determine what kind of reasonable accommodation you can request.

Question 9

What are the time limits for a discrimination claim?

Accepted Answer

Your discrimination claim must first be filed with either the Massachusetts Commission Against Discrimination ("MCAD") or the federal Equal Employment Opportunity Commission ("EEOC").

If you bring the claim in Massachusetts, whether at the MCAD or EEOC, you have 300 days from the discriminatory act to file.  This is approximately ten months.  You may see reference to 180 days, or six months.  That is the federal statute of limitations, but the EEOC will apply the state statute if it is longer.  This is why even at the EEOC it is 300 days in Massachusetts.

You should pay careful attention to this time period- with very limited exceptions it is strictly enforced, and you could lose your right to bring your claims if you do not act within 300 days.

Question 10

Can you file a discrimination claim without a lawyer?

Accepted Answer

If you choose not to hire a lawyer to help you at this stage, you can file a complaint yourself either with the Massachusetts Commission Against Discrimination ("MCAD") or the federal Equal Employment Opportunity Commission ("EEOC").

Remember, you only have 300 days (roughly 10 months) after the act of discrimination or harassment to begin your claim.  In most cases, it is best to have the advice and assistance of experienced counsel so that you can put your best case forward, but if you are coming close to this deadline, or cannot find an attorney, you can file the initial complaint yourself.

You can file a complaint with MCAD by phone or by mail.  If you are not represented, you should consider filing by phone, as that will connect you with an intake person at MCAD who can help make sure you provide all of the required information.

Question 11

What is disability under the ADA?

Accepted Answer

State and federal laws prohibit discrimination based upon disability or perceived disability.  Not every condition that interferes with your ability to work is considered a disability under these laws, however.

In order to qualify for protection under the disability discrimination laws, you must have a physical or mental impairment that substantially limits one or more major life activities.

In order to be "substantially limiting" under the ADA, the impairment must be either permanent or long term. This means that an injury or short term illness will likely not be considered a disability.  If you have a short term condition, you may still qualify for benefits and protection under the Massachusetts Paid Family Leave Act, but may not be entitled to ask for accommodations when you return to work.

In addition to the long term nature of the condition, it must substantially limit a "major life activity." Things that are recognized as major life activities include walking, seeing, reading, bending and communicating. It also includes major bodily functions. These can include the immune system and digestive, bowel, bladder, respiratory, neurological, circulatory, endocrine and reproductive functions.

Question 12

What is Gender Discrimination?

Accepted Answer

Discrimination based on gender or sex is unlawful under both Massachusetts and federal law.  Broadly, gender or sex discrimination means taking a negative employment action against someone based on their gender or sex.  It can also apply where a facially gender-neutral policy, such as a lifting or physical requirement, has a disparate and unnecessary impact on one gender (usually female).

Sexual harassment is a form of gender discrimination, as is unequal pay between men and women for comparable work.  These are also both independently protected by separate statutes.

Under Massachusetts law, sexual orientation and gender identity are specific protected classes.  under federal law, courts have held that this is a form of sex discrimination, meaning you can still seek recourse under federal law if you are discriminated against on this basis.

Question 13

Is sexual harassment considered discrimination?

Accepted Answer

Sexual harassment in the workplace is considered sex or gender discrimination under both federal and Massachusetts law.  Though women are generally more likely to be "sexualized" in the workplace, a harassment claim can lie no matter what the gender of the victim, if you can prove the elements of sexual harassment.

The anti-discrimination laws do not apply to every employer- for example, an employer must have 6 or more employees to be sued for harassment under Massachusetts law.  If you think you are being harassed in a smaller workplace than this, you may still have a remedy.  Massachusetts has a statute separate from the anti-discrimination laws declaring sexual harassment unlawful, which has no minimum size for the employer to be liable.

Question 14

Can a female discriminate against another female?

Accepted Answer

The short answer is yes.  All discrimination is complex, and gender discrimination is no exception.  A female manager of a different race or age may have different stereotypes or assumptions about women of your race or age, and if they act on those in a discriminatory fashion it is still actionable even though they are also female.

Whatever their race or age, a female manager could have bought into other more general stereotypes about women in certain positions- for example, about appropriate leadership styles for women that create a different expectation than for men, or assumptions about how a female employee will fare in the workplace after pregnancy or childbirth.

It may be more difficult to prove as a practical matter if the offending manager is female, but if you can establish the elements of discrimination, it is still a viable claim.

Question 15

Is it unlawful to discriminate based on sexual orientation or gender identity?

Accepted Answer

Massachusetts specifically includes sexual orientation and gender identify in the classes that are protected under anti-discrimination statutes.  Federal law does not, but in recent years courts have held that these can be protected under the broader umbrella of gender or sex discrimination.

Unlike many other protected classes, your status with regard to sexual orientation or gender identity may not be known to your employer at the time of hire, and may never be known unless you or someone else discloses it.  But if you have disclosed in some way- brought a same sex partner to a company event, or requested different pronouns- and experience adverse actions on the job, you may have a discrimination claim.

Question 16

What is the law when men are paid more than women?

Accepted Answer

Paying men and women differently for the same or comparable work is a form of gender discrimination.  It is also separately prohibited under federal and state equal pay laws.

The federal Equal Pay Act includes the language "equal" work, while the Massachusetts Equal Pay Act speaks of "comparable" work, a somewhat more flexible standard that can account for unimportant distinctions in job roles when it comes to comparing pay.  "Comparable" work under the Massachusetts law generally involves jobs that require equal skill, effort, and responsibility and are performed under similar working conditions.

Employers are also not supposed to bar you from discussing pay with co-workers.  Under Massachusetts law, they further cannot ask you about your salary history in the interview process until they have made a firm offer of employment with proposed compensation terms.

Question 17

What is the difference between race and national origin discrimination?

Accepted Answer

Anti-discrimination laws prohibit discrimination based on both race and national origin or ethnicity. What is the difference?

For purposes of discrimination laws, race refers to skin color and/or membership in a group with common history- for example, Black, Native American, or Latino.  National origin is about the country you or your ancestors came from.  The two often overlap.  If an employer discriminates against you because you are Latino and because you or your family come from Mexico, for example, this could be both race and national origin discrimination.

You could also be considered White in terms of race, but come from a foreign country and face discrimination based on accent or other stereotypes or assumptions about your country of origin.

We have also seen national origin discrimination among people who might be considered the same race, but who come from different countries with a history of animosity toward one another.

Question 18

How to identify race discrimination

Accepted Answer

This is often the most difficult part of employment discrimination law.  People do not usually announce their discriminatory motives, and most often if there is an adverse action, an employer will go to great lengths to try to document some other reason for the action.

Information we look for when trying to assess whether there has been discrimination includes:
Whether there are other employees not in your protected class who were treated differently for the same alleged infractions, or promoted in your place
Whether there is a history of people who are the same race or national origin as you being fired, disciplined or not promoted
Whether there is any history of "coded" language used with or about you that could suggest some bias on the employer's part
How credible the stated reason for the termination or discipline is, and whether it could be considered pretextual.

Question 19

Can people of the same race discriminate against each other?

Accepted Answer

It may pose some practical problems when proving racial bias, but it is entirely possible for a person of color to discriminate against another person of color.

One example is where both are considered people of color, but are different races (i.e., Latino, Black, Native American).  Another could be where both are considered "Black" but come from different countries, and have biases based on national origin.

There are also examples of discrimination within the same race.  You could have a light-skinned Black manager with biases against a darker skinned Black employee.  You can have overlap between race and gender discrimination, where a male or female person of color discriminates against someone of the opposite gender.

The combinations are almost endless- the bottom line is that if you feel you are being singled out or treated differently because of your race or national origin, even if the person who is treating you in this way is the same race, you should consult an employment lawyer to better understand your rights and your options in that situation.

Question 20

Is harassment based on race or national origin illegal?

Accepted Answer

When we think about workplace harassment, the first thing that usually comes to mind is sexual harassment.  But it also can be actionable discrimination if you are being harassed at work based on your race or national origin.

Extreme examples would be the use of the "N" word in the workplace that is not addressed after being reported to management.  Other examples include repeated comments in the workplace that are disparaging to your national origin- comments about terrorism to a person of Middle Eastern descent, or about illegal immigration to a Latino employee.

If it is severe and pervasive enough that no reasonable person in your shoes would continue to tolerate it, you may be able to resign and bring a discrimination claim under a theory of "constructive discharge."  You should discuss this with an employment lawyer before making that decision, because proving constructive discharge can be challenging.

​You do have the right to report the behavior to management and ask for it to be addressed, without fear of retaliation.  If you are terminated after making such a report, and can show some causal connection between your complaint and your termination, you may have a claim for wrongful termination.

Question 21

Are you protected if you report discrimination against a co worker?

Accepted Answer

Sometimes you may not be the target of discriminatory acts, but witness them occurring to a co-worker.

You can play an important role in addressing discrimination in the workplace by being an ally, and there are legal protections for you if you choose to do so.  You should first talk to the person you see as the victim of the discrimination, though.  There may be reasons they don't want to address the issue at that particular time, and you should make sure you are actually doing something of service to them before you act.

​If you decide to report it to management, you are protected against retaliation just as if you were reporting discrimination against yourself.  Similarly, if you assist that person in asserting any claims or making any reports, that too is protected activity under the anti-discrimination laws.

Question 22

Who is protected from age discrimination?

Accepted Answer

Federal and state law prohibit discrimination based on age.  This only applies, however, to people who are 40 years old or older.  In other words, it is better expressed as older work discrimination than age discrimination, because younger people are not protected if an employer discriminates because they are perceived as too young.

The cut off is 40, and has not changed in the decades since the age discrimination laws were enacted.  In practice, as the average age of the workforce has increased, examples of actionable discrimination tend to (though not always) involve workers who are fifty or older.

There is also often an overlap between age discrimination and disability or perceived disability discrimination.  For example, if you are older and have a health condition, your employer may start to think about your age differently than before the health issues were disclosed.

Question 23

How to identify age discrimination

Accepted Answer

If you are terminated or laid off, it can be difficult to tell whether it is because of your age, or some other legitimate reason.  Here are some things to consider, and that we consider as attorneys when evaluating a potential age discrimination case:
Was your position replaced, and if so, was your replacement a younger person?
If it was a layoff, what percentage of the people who were laid off were over 40?
Had there been any comments by your managers that could be considered "code" for age bias (for example, comments about facility with technology, ability to keep up, health concerns)?
Had you or others over 40 previously been passed over for promotions in favor of younger employees?
If you were terminated for cause, were other younger employees who did the same thing treated the same way?
Discrimination can be tricky to prove, and the analysis is always highly dependent on the facts of your particular case.  If you are wondering whether age was a factor in your termination, you should consult an employment attorney to better understand your rights and your options.

Question 24

Can your employer force you to retire?

Accepted Answer

Under the principle of "at-will employment," an employer can require employees to leave their jobs, whether it is called retirement or a layoff.

The use of the word "retirement," however, suggests age as a factor.  That, or a mandatory retirement age in private employment, could support a claim for age discrimination.
​
Discrimination can be tricky to prove, and the analysis is always highly dependent on the facts of your particular case.  If you are wondering whether age was a factor in your termination, you should consult an employment attorney to better understand your rights and your options.

Question 25

Special considerations for older workers offered severance

Accepted Answer

First, any time you are offered a severance agreement that includes signing a release of claims, you should consult with an employment lawyer to better understand whether you have legal claims against your employer that may be worth more than what they are offering you.

Second, the federal Age Discrimination in Employment Act ("ADEA") and related laws and regulations include specific requirements for a release of age discrimination claims to be effective.  These include:
You must be given 21 days to consider the agreement before signing
Once you sign, you must be given a seven-day period in which you have the right to revoke, or cancel, the agreement
If your termination is part of a layoff or reorganization, the employer must disclose to you by department, role and age, which employees were and were not included in the layoff.  This document can be confusing to read, but the intent is to allow you or your lawyer to assess whether older workers were disproportionately affected by the layoff or reorganization.

Question 26

What is perceived disability discrimination?

Accepted Answer

If you have an actual disability that requires accommodations to do your job, your employer has an obligation to make any accommodations that are reasonable under the circumstances.  Sometimes, however, you do not need any accommodation to do your job, but your employer believes you have a limiting condition or disability, and may treat you differently based on that perception.  This can be "perceived disability discrimination."

One example is if you return from a medical leave and your employer demotes or reassigns you based on an assumption that your condition prevents you from doing the work before your leave.  Another example is if you have had a mental health condition and your employer refuses to accept that you are able to do your job, or treats you with suspicion and distrust based upon that mental health condition, even if it is under control.

Adverse employment actions (demotion, termination, etc.) based on an employer's assumptions about the impact of your condition on your ability to do your job can give rise to a disability discrimination claim under federal and Massachusetts law.

Frequently Asked Questions About Employment Discrimination in Massachusetts

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