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Workplace Discrimination Employer Guide

Most employers do not intentionally discriminate against their employees.  And yet fear of an employee discrimination lawsuit is one of the top concerns we hear from small employers.

Why is this?  Because in most workplaces, the majority of your employees will belong to one or more "protected classes" under the law, even if you as their employer are not aware of it.

Being in a protected class does not mean an employee can never be disciplined or terminated.  What it does mean is that you may have to demonstrate a legitimate, non-discriminatory reason for the action you decide to take.


Below is some basic information about employment discrimination in Massachusetts to help you navigate these issues if you need to take action against an employee who is hurting your business.

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What is a Protected Class Under Discrimination Laws

Both Federal and Massachusetts law protect against discrimination in the workplace  based on certain characteristics.

These include:
  • Race
  • Color
  • Religion
  • National Origin
  • Sex
  • Age (over 40)
  • Pregnancy
  • Disability or 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
If you look around your workplace, you can see why this issue comes up as frequently as it does.  Chances are most of your employees fit into one more more of these categories. 

Being in a protected class basically means that if an employee challenges a termination or other action on the basis of discrimination, the burden then shifts to you, the employer, to demonstrate a legitimate, non-discriminatory reason for your actions.  If an employee is not in a protected class, then the at-will employment doctrine applies, meaning they can be fired for a good reason, a bad reason, or no reason at all.

Termination of an Employee in a Protected Class

A "legitimate" reason does not necessarily mean a fair or correct reason. It means a reason that is not based on discrimination.  Of course, the more the reason makes sense to the average person the more likely to are to be able to persuade a judge or jury that it was legitimate and non-discriminatory.

There is no requirement in the law that you use any particular kind of progressive discipline, or even give any warning before terminating an employee.  It is, however good practice to at least document and communicate your concerns about an employee before taking that action.

One reason is that an employee is much more likely to think there was discrimination if the decision comes as a surprise to them, and they didn't know you had concerns about their performance or behavior previously.

​Another reason is it helps you document the legitimate reasons for your action, in case anyone later claims discrimination.

Another thing to consider is whether your concerns about the employee are related in any way to their protected class- even if you don't believe you are discriminating.  This often comes up in the context of age and disability.  These things can affect how people do their work or interact in the workplace.  But they can't be the reason for termination if the employee is able to perform the essential functions of their job with reasonable accommodations.

The bottom line: you should not feel hostage to a negative employee situation just because of discrimination laws.  But you should seek out an employment attorney before disciplining or terminating someone who you think might raise these issues, to make sure everything is handled correctly and you are not putting your business at risk.

Other Forms of Discrimination in the Workplace

A hidden danger for employers is behavior that is happening in the workplace but not known to the owner or manager.  Your business can be liable for this behavior if you know about it or should reasonably know about it, and if it is unlawful under the discrimination and harassment laws.

Examples:
  • A female employee is being sexually harassed by a supervisor.  This is a form of gender discrimination and also actionable under the sexual harassment laws.  Once you are on notice as an employer, you have a duty to prevent the ongoing behavior.
  • An employee with a disability has asked for a different chair to accommodate his disability.  You have approved the request, but his supervisor won't allow him to use the chair.  Once you are on notice of this, you have a duty to make sure the reasonable accommodation is made for this employee.
  • An older employee is being kept from desirable assignments and given negative reviews by her younger supervisor, who makes comments that she is "too slow," "doesn't understand technology," and "might be getting senile."  Though the comments and the evaluations by themselves probably don't give rise to a legal claim, if she is ever terminated they are very strong evidence of age discrimination, which should be addressed by the employer.

Discrimination Can Be Complicated

You may be in a protected class yourself.  The same could be true for the supervisors in your business who are interacting with employees.  That does not mean you are insulated from a discrimination claim. 

Someone who is in a racial minority could be accused of discriminating against a female, an older employee, a disabled employee, or sometimes an employee who is a member of a different minority group.  Women can discriminate against women. And the list goes on.

A "discriminatory motive" can also be something you are not aware of yourself.  It could result from sterotypes or assumptions about certain groups of people.  It could just be a belief you have that you never thought of as discriminatory.

The bottom line is that you can't afford to rely on your own good intentions to protect you from discrimination claims.  Any time you have to make a difficult decision about an employee, it is good practice to discuss that decision with a trusted professional, preferably an experienced employment attorney.

Time Limits for Discrimination Claims

In most situations, the statute of limitations for discrimination lawsuits is 300 days, or approximately 10 months. You may see articles on the internet that say the deadline is 180 days or six months. This is true under federal law but in Massachusetts employees have some additional time even for federal claims.

From the employer's perspective, 10 months is a long time to wait and wonder if a discharged employee is going to sue.

This is why many employers, if in doubt about whether an employee will bring a claim, offer some sort of severance in exchange for a release of claims.  This is also something an employment lawyer can help you think through to come up with the right amount and draft an enforceable agreement.

How Our Employment Lawyers Can Help

Employment Discrimination Lawyer in MA slnlaw
10.0Emily E. Smith-Lee
Employment discrimination lawyers massachusetts
We can help you navigate these issues and get clarity on your rights and obligations in the face of an actual or imminent employment termination.  You can use the button below to schedule a call back from a member of our team, or give us a call at  781-784-2322.
Schedule a Free Information Call

Sharon MA

46 South Main Street
​Sharon MA 02067

(781) 784-2322
Serving Eastern and Central Massachusetts
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Chester MA
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  • Home
  • Employment Law
    • Guide To Employment Law Content
    • Advice for Employers >
      • Hiring Independent Contractors in Massachusetts
      • Termination Best Practices
      • Workplace Discrimination Employer Guide
      • Employee Handbook >
        • Employee Handbook Basics
      • Paid Family Leave and Your Small Business
      • Overtime Law for Employers
      • Employee Complaints About Pay
      • Employee Non Competes
    • Advice for Employees >
      • Employment Case Assessment
      • Discrimination in the Workplace
      • Sexual Harassment at Work >
        • Sexual Harassment Resources
        • Sexual Harassment in a Small Business
        • Constructive Discharge
        • Sexual Harassment and Non Disclosure Agreements
        • Sexual Harassment and Remote Work
        • Sexual Harassment Case Studies
      • Massachusetts Paid Family Leave
      • Non Compete Agreements >
        • Are non competes enforceable
        • Massachusetts Non Compete Act
        • Pre 2018 Massachusetts Non Competes
        • Non Compete Case Studies
        • Can I Avoid My Non Compete
      • Independent Contractor Law >
        • Independent Contractor Test
        • Working As Independent Contractor
        • Independent Contractor Case Studies
        • Independent Contractor Roadmap
      • Wage and Hour Laws >
        • Massachusetts Minimum Wage
        • Overtime Law >
          • Overtime Exemptions
          • Employee Travel Time
          • Federal or State Overtime Law
        • Overtime Law Case Studies
        • Massachusetts Wage Act >
          • Payment of Commissions
          • Wage Deductions
          • Late Payment of Wages
          • Paid Time Off
        • Wage Act Case Studies
        • What Are Your Wage and Hour Rights
      • Employment Contracts in Massachusetts >
        • Restrictive Covenants
        • Promissory Estoppel
      • Employment Termination >
        • Severance Pay
        • Should I Accept a Severance?
    • Unemployment in Massachusetts >
      • Unemployment Overpayment
      • Pandemic Unemployment
      • Unemployment Case Studies
  • Estate Planning
    • Guide To Estate Planning Content
    • Legacy Protection >
      • Why You Need an Estate Plan >
        • Why You Don't Have an Estate Plan
      • Massachusetts Estate Tax
      • Asset Protection Trusts
      • Children with Special Needs
    • Planning for Assisted Living
    • Is Your Will Enough >
      • Special Circumstances >
        • Estate Planning for Blended Families
        • Estate Planning for a Non Citizen Spouse
        • Estate Planning and Divorce
        • Estate Planning for Small Business Owners
      • Surviving Spouse's Share
      • Disinheriting Children Massachusetts
      • Updating Your Estate Plan
    • Estate Planning Documents >
      • What is a Trust >
        • Revocable trust
        • Irrevocable trust
        • Irrevocable vs revocable trust
      • Last Will and Testament
      • Durable Power of Attorney
      • Massachusetts Health Care Proxy
      • Life Estates in Massachusetts
      • Massachusetts Pet Trust
    • Probate Process >
      • Non Probate Assets
  • Business Law
    • Guide To Business Law Content
    • Small Business Law
    • Business Contract Basics
    • Civil Suit Defense
    • Legal Issues for Start Ups
    • Trademark Basics
    • How to Incorporate
    • Sale of Business
  • About
    • Reviews
    • Slnlaw Offices
    • slnlaw core values
    • Publications and Interviews
    • New Client Intake and Consultation
    • Contact
  • Attorneys
    • Emily Smith-Lee >
      • 2018 Lawyer of the Year
    • Rebecca Rogers
    • Sharleen Tinnin
    • Elijah Bresley
  • Legal FAQs
    • Estate Planning FAQs
    • Probate FAQs
    • Small Business FAQs
    • Wage Act FAQs
    • Commission Pay FAQs
    • Overtime FAQs
    • Independent Contractor FAQs
    • Non Compete FAQs
    • Employment Discrimination FAQs
    • Employment Termination FAQs
    • Massachusettts Unemployment FAQs
    • Severance Package FAQs
    • Medical Leave FAQs
    • Sexual Harassment FAQs
    • Employer FAQs
    • Civil Lawsuit FAQs
  • Blog