The Massachusetts Fair Employment Practices Act (FEPA) prohibits discrimination based on sex, gender identity, sexual orientation, or pregnancy or related conditions, including lactation or the need to express breast milk for a nursing child,. The FEPA covers employers with six or more employees (MA Stat. Ch. 151B Sec. 4). The FEPA defines "gender identity" as a person's gender-related identity, appearance, or behavior, regardless of whether it is different from the person's physiology or assigned sex at birth.
The Massachusetts Equal Pay Law requires that female employees be paid the same wages as male employees for work of “like or comparable” character, unless the pay difference is based on seniority. The Law covers all employers regardless of size (MA Stat. Ch. 149 Sec. 105A).
Defending against a discrimination claim. Employers may be able to successfully defend against charges of discrimination by carefully documenting the reasons leading up to an adverse employment decision. The 1st Circuit Court of Appeals has ruled that an employee failed to provide sufficient evidence that her former employer's explanation for firing her was a pretext for discrimination (Garcia v. Bristol-Myers Squibb Co., 535 F.3d 23 (1st Cir. 2008)). In this case, the employee claimed the employer terminated her employment because of her gender. However, the employer presented documentation of the employee's poor job performance, including the results of an internal audit, complaints of other employees, and the deterioration of her performance while she was on a performance improvement plan.
Practical tip: Employers should keep accurate records of the reasons leading up to any adverse employment action, including transfers ...