EMPLOYMENT DISCRIMINATION LAW
Employment At Will and Discrimination
In Massachusetts, as in many other states, employment is considered “at will,” unless you have an employment contract that says something different. What that means is that either the employer or the employee can end the relationship at any time, for any reason or for no reason at all. It can be fair or unfair, carefully considered or impulsive. This also means that, contrary to popular belief, there is no legal requirement that an employer use warnings or “progressive discipline” before terminating an employee.
Despite all of that, even if an employment relationship is "at will," an employee cannot be fired or disciplined for a reason that is unlawful. An unlawful reason under Massachusetts and Federal employment discrimination law includes employment decisions that are motivated by discrimination based on race, gender, national origin, disability, sexual orientation or other "protected classes." The law also prohibits adverse employment action (for example, termination, discipline or demotion) that is done in retaliation for an employee's good faith complaint about discrimination or sexual harassment in the workplace.
What Are Protected Classes in Discrimination Law?
Despite an employer’s freedom to terminate for any reason or no reason at all, federal and state law prohibit making such a decision based on a person’s membership in a protected class. This is where a layperson's understanding of the word "discrimination" may differ from the definition under the law. An employer may "discriminate" against certain people, in the sense that some are favored and some are disfavored, and in many cases it is perfectly legal. An employer, for example, who favors members of his own family, or people with certain political views, or people from his or her hometown, may do so without necessarily violating the law. It is only when that different treatment is motivated by characteristics the law considers protected (known as "protected classes") that the employment discrimination laws come into play. It is important to know, particularly for employers who are primarily based outside of Massachusetts, that Massachusetts employment discrimination law protects a broader group of people than the Federal employment discrimination law.
Both Federal and Massachusetts employment law protect against discrimination based on race, color, religion, national origin, sex, age (over 40), pregnancy, disability, and perceived disability. In addition to these federally-protected classes, Massachusetts employment law protects against discrimination based on:
What Activity is Protected Under Retaliation Law?
It is also unlawful under employment discrimination law to fire an employee in retaliation for engaging in certain activities protected under the discrimination laws. Examples of protected activity:
Proving Employment Discrimination: How It Works
Employment discrimination law can be very confusing, and has many nuances. This is probably because human relationships are complex, and there are often many different reasons people do the things they do in the workplace- teasing out whether one of those motivations was discriminatory, or proving that it wasn't if you are the employer, is not always straightforward. For this reason, courts have adopted a three-stage framework for cases in which an employee is claiming unlawful discrimination.
Phase One: the prima facie case. "Prima facie" means literally "on first impression." In a legal case, this usually means the initial burden on the person bringing the claim to make a simple showing that they may be entitled to relief. In discrimination cases, this means you must show that you are in a protected class, that you were qualified and able to do your job, that the employer took some adverse action (i.e., termination or demotion), and that either your position was replaced with someone outside of your protected class or your employer continued to post the position and look for other candidates after you were removed. This is generally not a difficult burden to meet for the employee.
Phase Two: the employer's burden. Once a plaintiff has established a prima facie case, the burden shifts to the employer to present evidence of a legitimate, non-discriminatory reason for the action taken. Such reasons can include economics, job performance, restructuring, or employee violations of company policies. The key term here is "non-discriminatory." The objective legitimacy of a termination decision can be called into question where, for example, the employer has made a determination of wrongdoing by the employee that was incorrect or unsupported by evidence, but if it was simply a mistake or even just the result of an incomplete or even incompetent review of the facts and not motivated by discrimination, that reason still may suffice as a "legitimate non-discriminatory reason" for the decision, at least at this stage of the analysis.
Phase Three: pretext. If the employer has presented evidence of a legitimate non-discriminatory reason for the employment decision, the employee/plaintiff then has the opportunity to demonstrate that the reason was pretext. "Pretext" in this context means the stated reason was not the real reason for the decision, but rather a pretext or excuse to cover up a true discriminatory motive. This is where it may matter if the stated reason was not adequately investigated, or appears unsupported by the facts. It is also relevant at this stage whether there were other employees outside of the protected class who performed at the same level as the terminated employee, or violated the same company policies, or were otherwise similar to the terminated employee, but were not disciplined or terminated. These people are called "comparators" in employment discrimination law, and how a discrimination case turns out is often heavily dependent on evidence about comparators.
What Does This Mean for You?
This does not mean an employee in a protected class, or who engages in protected activity, can never be fired or disciplined. What it does mean is that employers should be thoughtful and consistent in their disciplinary and firing decisions, not because the law requires thoughtfulness and consistency but because, in their absence, an employee -and ultimately a judge or jury- could conclude that the reason for the employer's action was that person's membership in a protected class or because of protected activity, and therefore a violation of the employment discrimination law.
Frequently Asked Questions
Below are answers to some frequently asked questions we hear about employment discrimination laws.
I was the only person of color in my workplace and I was fired. Is that discrimination? Maybe. The fact that you are the only person in your protected class and were treated differently (i.e., fired) is evidence that could support a finding of discrimination. In order to make a case of discrimination, however, you generally need some additional evidence, such as evidence that white co-workers who were similar to you in job performance or job conduct were not terminated or disciplined, or evidence of statements by your supervisors or managers that would demonstrate a bias against you based on race or color.
What if my manager or supervisor is also a member of a protected class but I still feel I was discriminated against? We see this a lot, and yes, it is possible for a member of one protected class to discriminate against another. It is even possible for members of the same protected class to discriminate. There examples in the caselaw of women bringing discrimination claims based on the conduct of a supervisor who was also female, most commonly where the supervisor is a white woman and the employee a person of color or from another country.
Almost everyone in my workplace is from a particular country and I am not. Is it discrimination if they treat me differently? This is both common and complex. Many small businesses are operated by first or second generation immigrants, and have been built in the first place around friends and relatives, who often have the same country of origin. As the business grows and reaches out into the broader marketplace for employees, there can be conflicts or perceived conflicts. Is different treatment based on hostility to your race or national origin, or is it a soft form of nepotism (which is not illegal)? In the end, the analysis is the same as for any other discrimination case: is there a legitimate non-discriminatory reason for the actions taken, and does it survive scrutiny.
I recently returned to work from maternity leave and my boss is giving me lower level assignments and not letting me in on meetings and decisions I used to be part of. I am worried that this will affect my long term advancement in the company. Is this discrimination? This is a real concern, and unfortunately a common experience. The different treatment in terms of job assignments may not yet rise to the level of an "adverse employment action" for purposes of discrimination law, but if you find yourself denied a promotion, raise or bonus and can tie it to your lack of access to meaningful work, you could have a claim either for gender discrimination or pregnancy discrimination.
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How slnlaw Can Help
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