Skip to content Skip to footer

Table of contents

This Massachusetts Human Resources Manual is offered to you for free. Find state specific laws and regulations below.

Discrimination — Massachusetts


Employers are prohibited from discriminating against employees because of their:

  • race
  • color
  • national origin
  • religion
  • sex/gender (including marital or pregnancy status)
  • pregnancy
  • age
  • disability
  • sexual orientation
  • military or veteran status
  • genetic information.

Discrimination law applies to all of employment decisions, including an employer’s decision to hire, fire, promote, transfer, compensate, refer, or discipline employees.

Laws prohibiting discrimination include, but are not limited to:

  • Title VII of the Civil Rights Act (Title VII)
  • Section 1981 of the Civil Rights Act (Section 1981)
  • Immigration Reform and Control Act  (IRCA)
  • Equal Pay Act  (EPA)
  • Pregnancy Discrimination Act (PDA)
  • Age Discrimination in Employment Act (ADEA)
  • Older Workers Benefits Protection Act (OWBPA)
  • Genetic Information Nondiscrimination Act (GINA)
  • Executive Order 11246
  • Uniform Services Employment and Reemployment Rights Act (USERRA)
  • Americans with Disabilities Act (ADA)
  • Massachusetts Fair Employment Practices Act.

Illegal discrimination 

The Massachusetts Fair Employment Practices Act makes it unlawful for any:

  • employer (including the Commonwealth of Massachusetts)
  • employment agency
  • labor organization

to discriminate against any employee on the basis of:

  • race
  • color
  • national origin
  • religion
  • sex/gender (including marital or pregnancy status)
  • disability
  • age
  • sexual orientation
  • veteran's status
  • mental illness
  • gender identity
  • active military status
  • ancestry
  • genetic information.

Under this statute, an employer may not take any employment action based on an employee’s protected class status. An employer must have six or more employees to be covered by this law. Social clubs and fraternal associations or corporations are exempt from coverage.    

Additionally, Title VII of the Civil Rights Act (Title VII), applies to public and private employers that have 15 or more employees, and prohibits employment discrimination based on the following protected characteristics:

  • race
  • color
  • religion
  • national origin.

Under both statutes, it is illegal to take any employment action based on an employee’s protected-class status or to discriminate in any aspect of employment including, but not limited to:

  • hiring
  • compensation
  • transfers
  • demotions
  • providing a reference
  • termination.

Key differences

Massachusetts anti-discrimination law closely parallels Title VII, however, it includes some differences:

  • Federal law requires that an individual proceed to court for resolution of his or her claim, while state law permits the plaintiff to resolve the case at the administrative level.
  • Massachusetts law covers more employers than federal law because it requires that an employer only have a minimum of six employees, rather than a minimum of 15 employees as required by federal law.
  • Massachusetts law does not cap punitive or compensatory damages (except in age discrimination cases).
  • Massachusetts law does not exempt bona fide seniority systems from anti-discrimination laws.
  • Massachusetts law provides for individual liability of co-workers and supervisors.
  • In addition to the categories recognized by federal law, Massachusetts law prohibits discrimination on the basis of sexual orientation.

Employees who file claims under Title VII or Massachusetts law use one of two theories:

  1. disparate treatment
  2. disparate impact.

Disparate treatment

In a disparate treatment claim, an employee asserts that both:

  • the employer treated the applicant or employee differently than other applicants or employees not within that individual’s protected class
  • the employer’s differential treatment was intentional.

When an employee brings a disparate treatment claim under Title VII, he or she alleges that the employer treated him or her differently than others because of his or her connection to a protected class such as race or gender. A female may bring a claim under Title VII alleging that the employer treated her differently than males, and that the difference in treatment was because of her gender. 

An employee cannot succeed with a disparate treatment claim simply by showing that he suffered an adverse employment action (such as being fired or demoted). The central issue in a disparate treatment claim is whether the employer’s actions were motivated by discrimination, and, thus, an employee must show discriminatory intent.

Proof of disparate treatment

Case based on direct evidence

Direct evidence is evidence based on personal knowledge or observation that, if true, proves discriminatory intent without inference or presumption. Examples of direct evidence include:

  • a notation on an applicant’s resume indicating a discriminatory bias, such as a reference to the applicant’s protected class status
  • statements (typically by decision-makers) demonstrating unlawful bias against an applicant or employee.

An employee may rely solely on direct evidence to prove intentional discrimination. If an employee direct evidence is sufficient to establish an inference of discrimination, the employer typically defends itself by one or more of the following approaches:

  • producing evidence disputing the employee’s evidence (such as showing that the supervisor did not make discriminatory statements)
  • producing evidence that the employer made decisions based on factors other than the individual’s protected class status
  • by asserting that the employee failed to use the employer’s procedure for reporting complaints of discrimination to give the employer an opportunity to remedy it
  • asserting other legal defenses such as the employee’s failure to bring the claims in a timely manner.
Case based on circumstantial evidence

Oftentimes, an employee does not have direct evidence of an employer’s discriminatory intent and therefore requires circumstantial evidence to prove his or her claim. Circumstantial evidence is evidence that, by itself, does not directly prove a fact of consequence, but allows the judge or jury to infer the existence of the fact. For instance, a female applicant suing an employer for sex discrimination could produce circumstantial evidence in the form of records showing that the company has never hired a woman for the position the applicant sought, despite having had several qualified female applicants over the years. 

If an employee brings a discrimination claim based on circumstantial evidence, the lawsuit proceeds in three phases:

  1. Plaintiff must establish an inference of discrimination. - The employee must produce enough evidence to create a question as to whether the employer unlawfully discriminated against the employee. The evidence differs depending on what type of discrimination is alleged.
  2. Employer must establish a legitimate, nondiscriminatory reason for its action. - If the plaintiff establishes an inference of discrimination, the employer must provide a legitimate, nondiscriminatory reason for its action. For instance, the employer could state that it did not hire a female applicant because she was not qualified for the position. The employer must be able to support its action with a lawful basis.
  3. Plantiff must prove the employer's reason for its action is not the actual reason. - If the employer shows a legitimate, nondiscriminatory reason for its decision, the employee must prove that the employer’s stated reason is a falsehood designed to mask unlawful discrimination.

Mixed-motive cases

A mixed-motive case is one where the employee alleges that the employer acted in a discriminatory manner, and the employer claims that, while discriminatory intent may have been a motivating factor, the employer would have made the same employment decision had the discrimination not occurred. 

Employers must be extremely careful in these types of cases. The employer may be able to avoid damages in the form of back pay and front pay by showing it would have made the same decision without discriminatory bias, however, a court may still award attorney’s fees to the employee if the discriminatory bias was involved in the decision-making process.

Disparate impact

In a disparate impact claim, an employee claims that an employer’s seemingly neutral policy or practice is unlawful because it has a significant adverse impact upon a protected group. The fact that the employer had no discriminatory intent does not shield an employer from liability when its policy results in discrimination toward some of its employees.

Similar to a disparate treatment claim, the employee must prove that a particular policy has a disproportionately adverse impact on a protected class. An employee often relies on statistical evidence to prove this type of case, such as selection rates, pass/fail rates on qualifying exams, and population/workforce comparisons. Simply put, a plaintiff must show that a particular employment practice produced discriminatory results.

Neither the language of Title VII nor case law states the quantity of statistical evidence that is sufficient to establish a “disproportionate impact.” Courts generally make this determination on a case-by-case basis.

Enforcement of Title VII of the Civil Rights Act

The Equal Employment Opportunity Commission (EEOC) and private parties enforce Title VII. Before bringing a claim in federal court, an employee must file a charge of discrimination with the EEOC no later than 180 days after the alleged discriminatory event. If the employee alleges that the employer discriminated against him or her on an ongoing basis, the employee must file his charge within 180 days of the last occurrence of the alleged discriminatory practice. 

After a party files a charge, the EEOC investigates it using a “reasonable cause” standard. This standard inquires whether it is “more likely than not” that discrimination took place. The determination focuses on whether the employee established an inference of discrimination, and whether the employer’s purported reason for its employment decision is the real reason. When the EEOC determines that the employee meets the reasonable cause standard, it attempts to eliminate the unlawful discrimination through a mediation between the parties. When the EEOC determines that the reasonable cause standard has not been met, it issues notice to the employee of his or her right to file a private lawsuit (referred to as a “right-to-sue letter”). At that point, if an employee chooses to bring a civil suit, he or she must do so within 90 days of the receipt of the notice.

Remedies available 

Remedies under Title VII aim to eliminate discrimination and to “make whole” the individual victim of discrimination. Examples of available remedies include:

  • Injunctive relief - When a court awards injunctive relief, it requires an employer to do, or to refrain from doing, certain acts. For instance, a court may banish unlawful employment practices such as job requirements, educational requirements, scored tests, and age limits.
  • Reinstatement - Reinstatement is a common remedy in cases of discriminatory termination, however, a court will not order it if the result is to return the employee to a hostile work environment. Moreover, courts generally do not order reinstatement if it causes another employee’s displacement.
  • Retroactive seniority - Retroactive seniority awards an aggrieved employee the amount of seniority he or she would have accrued had the employer not discriminated against him or her.
  • Front pay - A court typically allows front pay when reinstatement is not possible. Generally, front pay is the amount of money the employee would have earned if the employer reinstated him or her.
  • Back pay - Back pay awards typically include lost wages and benefits.
  • Promotion - Similar to reinstatement, a court does not order an employer to promote a successful Title VII plaintiff if the promotion results in another employee’s displacement.
  • Compensatory damages - Compensatory damages are only available as a remedy for intentional discrimination. Compensatory damages compensate an employee for non-economic injuries such as pain and suffering, humiliation, and harm to reputation.
  • Punitive damages - Punitive damages (money damages meant to punish an employer and to deter future discriminatory conduct) are also only available as a remedy for intentional discrimination.
    To determine a punitive damages award, courts consider:
    • the degree of egregiousness of the employer’s conduct
    • the disparity between the harm or potential harm suffered by the plaintiff and the punitive damages award
    • the difference between this particular remedy and the remedies authorized in comparable cases.
  • Combined compensatory and punitive damage awards are capped at:
    • $50,000 for employers with 15 to 100 employees
    • $100,000 for employers with 101 to 200 employees
    • $200,000 for employers with 201 to 500 employees
    • $300,000 for employers with more than 500 employees.

Racial discrimination

As discussed earlier, employees may file claims based on race discrimination under Title VII of the Civil Rights Act. However, employers should be familiar with another source of protection: Section 1981 of the Civil Rights Act (Section 1981). An employee typically invokes Section 1981 to avoid Title VII’s procedural requirements, and in some cases, to gain access to additional damages. Both Title VII and Section 1981 prohibit discriminatory employment decisions based on race. In addition, both laws protect against racial harassment and retaliation.

Key differences

  • Unlike Title VII, which protects employees against discrimination based on race, color, sex, national origin and religion, Section 1981 only protects employees against race discrimination.
  • Unlike Title VII, which covers only those employers with 15 or more employees, Section 1981 covers all private employers, regardless of the number of employees.
  • The administrative requirements to file a suit in federal court under Title VII do not apply to Section 1981 claims. Thus, Section 1981 does not require an employee to first file a charge with the EEOC, nor must he or she wait for a right-to-sue letter.
  • Unlike Title VII, which requires that a plaintiff file a charge of discrimination with the EEOC within 180 days of the alleged discriminatory event, courts have determined that Section 1981 generally permits claims brought within a maximum of four years of the alleged discriminatory conduct, depending on the circumstances.
  • While Title VII allows claims under either disparate treatment or disparate impact, Section 1981 is appropriate only for cases where the plaintiff accuses the employer of intentional discrimination.
  • Unlike Title VII, Section 1981 does not provide a statutory cap to its punitive damage awards.

National origin discrimination

Title VII prohibits discrimination based on national origin. National origin discrimination is differential treatment of an employee because of his or her ethnic background. Title VII also protects employees who associate with persons of a particular national origin. Thus, according to EEOC guidelines, Title VII’s protections cover:

  • marriage to a member of a particular national origin
  • use of a spouse’s name that is associated with a particular national origin
  • membership in schools, churches, temples, or mosques generally used by persons of a particular national origin
  • membership in an organization that promotes the interests of national groups.

Employment verification

The Immigration Reform and Control Act (IRCA) makes it unlawful for any employer to hire a person who is not legally authorized to work in the United States. Because this law may cause employers to discriminate against foreign-looking or foreign-sounding job applicants, IRCA also contains two anti-discrimination provisions, which apply to employers with four or more employees:

  1. The first provision extends Title VII’s existing prohibition against national origin discrimination (Title VII applies to employers of 15 or more employees).
  2. The Act’s second provision prohibits discrimination based on citizenship status.

Religious discrimination

Under Title VII, a religious discrimination claim arises when an employer fails to accommodate an employee’s religious beliefs, forcing the employee to choose between his or her religion and his or her job. Thus, Title VII’s prohibition against religious discrimination creates an affirmative duty for an employer to reasonably accommodate an employee’s religious beliefs and practices. A religious discrimination claim may also be based on religious harassment or discrimination in the workplace.

Defining a religion

Courts hold that a person practices a religion when the individual has a sincerely held religious belief, regardless of whether this belief is approved or required by an established church or other religious institution. Therefore, in addition to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, courts protect other religious belief systems, so long as the employee sincerely believes in his or her chosen religion.

Burden of proof

A plaintiff who claims his or her employer discriminated against him or her by failing to accommodate his or her religious beliefs must establish three elements:

  1. he or she has a sincere belief that practicing his or her religious faith conflicts with a work requirement
  2. he or she informs his or her employer of this conflict
  3. he or she is discharged or disciplined for failing to comply with the work requirement.

If the plaintiff establishes these three elements, the employer must then prove that it attempted to accommodate the plaintiff’s religious beliefs or that it was unable to provide an accommodation because to do so would create more than a minimal cost for the employer.

The extent of the duty to accommodate

The law does not require an employer to provide the employee with the “best accommodation” or even the accommodation preferred or proposed by the employee. Rather, an employer need only provide the employee with a reasonable accommodation. Thus, the majority of legal claims based on religious accommodation focus on whether the employer’s accommodation to the employee is reasonable.  

An employer does not have to implement any accommodation at all, if doing so would result in an undue hardship. The Supreme Court has defined “undue hardship” as any accommodation that would impose more than a minimal burden on the operations of the employer’s business. The reasonableness of an accommodation depends on the facts of each case.

Example 1
An employee requests to take off work for Yom Kippur, which occurs one day each year and may fall on a weekday. Courts will likely require an employer to accommodate him.
Example 2
An employee claims that his religion requires him to be off work every Monday and Tuesday. Courts are not likely to force an employer to accommodate this employee.

Types of accommodation

Generally, an employer should make reasonable adjustments to the work environment to permit an employee to practice his or her religion. The EEOC provides examples of common religious accommodations:

  • flexible scheduling
  • voluntary shift substitutions or swaps
  • job reassignments
  • modifications to workplace policies or practices.

Sex discrimination

Title VII prohibits employment decisions based on sex or sexual stereotypes. Sex discrimination is differential treatment of an employee based on his or her gender. Sex discrimination takes many forms. The following examples are common claims of sex discrimination:

  • an employer compensates an employee differently based on his or her gender
  • an employer makes assumptions about an employee because she is pregnant
  • an employer tolerates a work environment that includes sexual harassment.

Under Title VII, an employer may not make any employment decisions based on sex, nor may it implement practices that help foster sexual stereotypes. The sole exception to this prohibition is the bona fide occupational qualification (BFOQ) defense.

Bona fide occupational qualification

A bona fide occupational qualification is a quality or attribute (such as sex) that an employer may consider when hiring and retaining employees, even though consideration of the quality in other contexts would be discriminatory. For instance, a manufacturer of men’s clothing may lawfully argue that it will not hire women to model its clothes. The fact that an applicant is female disqualifies her from consideration. 

In order to establish a BFOQ defense, the employer must demonstrate:

  • A direct relationship between an employee's sex and his or her ability to perform the job - An employer may demonstrate a direct relationship by showing that all, or substantially all, individuals of one sex would be unable to safely and efficiently perform the duties of a particular position. However, a court will not uphold an employer’s rule when it relies on sexual stereotypes. For instance, an employer could not implement a policy excluding women from a position that regularly requires lifting over 30 pounds, because the policy assumes that women cannot lift heavy objects (that is, that women are physically weak).
  • The essence of business - Discrimination based on sex is lawful only when the essence of the business operation would be undermined if the employer were forced to hire members of both sexes.
Hooters restaurant attempted to exclude all male servers, claiming that male servers did not fit within Hooters’ chosen entertainment theme. The court disagreed, finding that Hooters marketed itself as a family restaurant instead of as an entertainment business, and therefore had no right to exclude men from service positions.
  • No reasonable alternative - Some courts require an employer to demonstrate that no less restrictive alternative is available other than the exclusion of a gender from the position.
A nursing home primarily servicing female patients rejected the application of a male nursing assistant because of his sex. The medical center argued that it was entitled to reject male applicants in order to protect its patients’ privacy rights. The court rejected this contention, in part, because there was a less restrictive alternative available to the medical center (such as allowing the male nursing assistant to work with male patients or non-objecting female patients).

Factors to consider

To determine whether a sex-based practice is lawful, courts consider:

  • Safety of others - The safety of others, not the safety of the employee, has traditionally been the most successful factor in justifying discriminatory practices.
  • Privacy - Courts occasionally uphold sex-based employment policies that are motivated by privacy interests of third parties. For instance, courts have found that sex is a BFOQ when health club owners refuse to hire male personal trainers for their female-only clubs. Under this theory, club owners argue that hiring males for a position that often requires close, intimate contact with the female clients is an intrusion into the clients’ privacy.
  • Role models - Courts may be inclined to uphold a BFOQ defense in situations where an employer asserts a need for an employee to be able to interact and relate to those with whom the employee works. For instance, a court upheld a rule implemented by the Omaha Girls Club prohibiting employment of unwed persons who became pregnant or caused pregnancy. The employer claimed that it created the rule to provide positive role models for its teenage patrons, and to discourage teenage pregnancy.

Generally, the court does not consider customer preference to be sufficient reason for a BFOQ.

Compensation discrimination based on sex

Several Massachusetts laws prohibit employers from paying employees differently on the basis of their sex. First, the Massachusetts Fair Employment Practices Act prohibits an employer from discriminatory compensation on the basis of an employee's membership in any protected category, including sex. Second, the Massachusetts Equal Pay Act (MEPA) specifically requires equal pay for work of comparable character, prohibits pay discrimination based on gender, and provides employees with a cause of action for discriminatory compensation on the basis of gender. In 2016, the Massachusetts legislature enacted (and the Governor signed) a new equal pay law, entitled the "Act to Establish Pay Equity" (Pay Equity Law) which will go into effect on July 1, 2018. 

Under the new Pay Equity Law, comparable work is defined as work that is "substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions." This definition arguably broadens the pre-July 2018 MEPA standard which the courts generally interpreted to require not just substantially similar skill, effort, and responsibility, but also comparable content.

The new Pay Equity Law contains a number of other significant provisions that affect employers with employees in Massachusetts. For example, under the Pay Equity law:

  • Employers may not reduce the wages of an employee for the sole purpose of complying with the law. (In other words, an employer may not lower the salary of a male employee to make it comparable to that of a female employee in an equivalent position.)
  • An employee’s previous wage or salary history may not be used as a defense to a claim made under the law.
  • Employers cannot rely on a defense similar to the “bona fide factor other than sex” defense available to employers defending federal claims under the Equal Pay Act.
  • Employers may not prohibit employees from inquiring about, discussing, or disclosing their own wages or another employee’s wages (though employers are not obligated to disclose an employee’s wages to another employee or a third party). The law, however, allows employers to prohibit human resources employees, supervisors, or other employees with access to compensation information from disclosing such information in the absence of written authorization from the affected employee.
  • Employers may not seek the wage or salary history of an applicant from the applicant or from the applicant’s current or former employer. An employer may, however, seek or confirm an applicant’s wage or salary history after an offer of employment with compensation has been negotiated and made to the applicant.
  • Employers may not discharge or otherwise retaliate against an employee because he or she has engaged in certain protected conduct (for example, opposing gender-based wage differentials or participating in an investigation).
  • An employer that is defending against an action under the Pay Equity Law and that has, within the previous three years and prior to the commencement of the legal claim, completed a self-evaluation of its pay practices in good faith and can demonstrate that it has made “reasonable progress” towards eliminating gender-based wage differentials can offer that as an affirmative defense to claims under the law. The self-evaluation may be of the employer’s own design as long as it is reasonable in detail and scope given the size of the employer. (If the evaluation is not reasonable in detail and scope, it cannot be used as an affirmative defense to a claim, but it can still prevent the employer from being liable for liquidated damages, which are otherwise available under the law.) The self-evaluation defense is unique to Massachusetts and could be an excellent tool to protect companies in the event of litigation down the line.
  • A self-evaluation is not admissible as evidence of a violation of the law, provided that the alleged violation of the law occurred:
    • before the date of the self-evaluation or within six months after the self-evaluation
    • two years after the evaluation if the employer can show that it has developed and begun to implement, in good faith, a plan to address gender-based wage differentials.
  • The fact that an employer has not completed a self-evaluation does not subject the employer, under the new law, to a negative inference for not having done so.
  • Employers may not enter into agreements with employees to avoid complying with the provisions of the law.
  • Employees may file single plaintiff or class-action litigation to enforce rights under the Pay Equity Law. They may also pursue claims through the state Attorney General. Available damages include unpaid wages, liquidated damages (i.e., doubling of the unpaid wages), and attorneys’ fees. Unlike other claims for workplace discrimination under Massachusetts law, plaintiffs will not be required to file with the Massachusetts Commission Against Discrimination prior to filing suit in court.
  • The statute of limitations for a claim will be three years after the date of the alleged violation. The law defines “alleged violation” somewhat broadly to include either when the:
    • alleged discriminatory compensation decision and/or practice was adopted
    • employee became subject to the alleged discriminatory compensation decision and/or practice
    • employee was affected by the application of the alleged discriminatory pay decision and/or practice, including each time wages were paid (when the wages result from the alleged discrimination).
  • This effectively means that the statute of limitations is reset with every paycheck, similar to the extended statute of limitations under the federal Lilly Ledbetter Fair Pay Act of 2009.
  • Pay variations are not prohibited, provided that they are based on any of the following:
    • seniority with the employer (although time spent on leave due to pregnancy, and protected parental, family, and medical leaves may not reduce such seniority)
    • a merit-based system
    • a system that measures the quantity or quality of production, sales, or revenue
    • the geographic location where the job is being performed
    • education, training, or experience, to the extent that those factors are reasonably related to the job in question
    • travel, if travel is a regular and necessary part of the job.

On March 1, 2018, the Massachusetts Attorney General issued detailed guidance on the Pay Equity Law. The guidance provides, among other things, that:

  • The Pay Equity law applies to employees who work outside of the Commonwealth if Massachusetts is their "primary place of work," i.e., the place where "most" of the employee’s work is performed.
  • "Comparable work" under the Pay Equity Law is broader and more inclusive than the "equal work" standard under the federal Equal Pay Act (EPA).
  • Job descriptions alone are not determinative of whether jobs are comparable.
  • "Wages" include incentive pay, vacation and holiday pay, paid time off, expense accounts, car and gas allowances, benefits of any nature and deferred compensation.
  • Changes in the labor market or other market forces do not justify paying employees of one gender less than employees of a different gender who perform comparable work.
  • Employees who apply for transfers or promotions are not covered by the Pay Equity Law’s ban on seeking wage or salary history.
  • Employers are allowed to ask prospective employees about sales performance and whether targets were met at prior employers, so long as the inquiries do not seek information about earnings based on those sales.

The guidance provides helpful Information on the attorney general’s enforcement provision on other pay equity law topics, as well as two appendices that provide helpful guidance on how to conduct self-evaluations and a checklist for reviewing policies and practices.

In addition to liability under state law, as described earlier, employers can also be held liable under the federal Equal Pay Act (EPA) which prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs of similar skill, effort, and responsibility. Under the Act, the term “wages” encompasses all forms of compensation. Thus, when an employer institutes differential fringe benefits, an employee may bring a claim under this Act, even when all other compensation is equal.

Determining equality of positions

To prevail on a federal Equal Pay Act claim, an employee must be able to identify an employee of the opposite sex who is within the same establishment and receives higher compensation for performing equal work. Courts do not compare wages of employees at separate places of business unless the plaintiff shows that both:

  1. the employer's operations are integrated
  2. the administration of the facilities is centralized.

When determining whether two jobs are equal, the court assesses the content of the job, not the formal job description. Thus, courts will consider the following factors:

  • Skill - Courts consider factors such as education, ability, experience, and training. Employers should note that courts focus on the skills required for the job, not the skills an individual employee happens to possess. In other words, a difference in pay between two security guards cannot be justified by the fact that one has a master’s degree in classical music because that type of degree is not required for the security guard position.
  • Effort - The EEOC defines effort as the amount of physical or mental exertion needed to perform the job. Thus, under this definition, two workers on a factory assembly line could hold the same job title, but if one worker’s job duties require more manual labor, the employer is justified in paying him more. In addition, courts will also consider differences in the volume of work performed.
  • Responsibility - The EEOC defines responsibility as the degree of accountability inherent in the job. For instance, an employer may pay more to a retail supervisor who is responsible for balancing registers and locking the store at the end of the day than to a sales associate, even if the two individuals otherwise perform similar duties.
  • Working conditions - Working conditions refer to “surroundings” (elements regularly encountered by a worker) and “hazards” (the physical hazards regularly encountered). An employer is justified in paying more to an employee if his position exposes him to greater hazardous conditions.


An employer may defend against a federal Equal Pay Act claim by proving that the difference in pay rate is based on:

  • an established seniority system
  • an established merit system
  • a system which measures earnings by quantity or quality of production
  • any factor other than sex.

An employer should note that when it corrects a pay differential, it should do so by increasing the lower-paid employee’s compensation, not be decreasing the higher-paid employee’s compensation.


The EEOC enforces the Equal Pay Act. Unlike Title VII, individuals are not required to satisfy any administrative prerequisites before filing a claim. Employees must file a claim under the EPA within two years of a violation.

Compensation discrimination under Title VII of the Civil Rights Act

An employee may also claim compensation discrimination under Title VII of the Civil Rights Act (Title VII). The Lilly Ledbetter Fair Pay Act expanded the definition of a “violation” under Title VII to include more than merely a discriminatory pay decision. Under this law, a violation occurs with each payment of wages, benefits, or other compensation that is the result of a discriminatory pay decision. Therefore, an employee’s claim for compensation discrimination under Title VII is timely so long as the employee files it within 180 days of his or her last paycheck – even if the actual discriminatory pay decision occurred several years ago.

Pregnancy discrimination

Because pregnancy and childbirth are sex-linked characteristics, Massachusetts courts hold that any actions of an employer that adversely affect an employee because of her pregnancy, childbirth, or other requirement of parental leave may be sex discrimination. Under Massachusetts law, employers may not treat employees and applicants who are affected by pregnancy less favorably than employees who are affected by other conditions but who are similarly unable to work. 

The Massachusetts Commission Against Discrimination advises employers that they may not:

  • deny a woman the right to work or restrict her job functions during or after pregnancy or childbirth when the employee is physically able to perform the necessary functions of her job
  • use a woman’s pregnancy or childbirth as the reason for an adverse job action, such as refusing to hire or promote a woman or for discharging her, laying her off, failing to reinstate her or restricting her duties
  • require that a pregnant woman take leave before giving birth if she is willing to continue working
  • prevent her from returning to work after she recovers from a temporary disability associated with her pregnancy or a related condition.

The employer should also be aware that medical conditions that accompany a pregnancy may rise to the level of a disability under Massachusetts law. Accordingly, an employer should treat a pregnant employee as it would treat employees who are temporarily incapacitated or disabled for other medical reasons.

The Massachusetts Pregnant Workers Fairness Act, which went into effect on April 1, 2018, applies to employers with six or more employees, and makes it unlawful for those employers to deny reasonable accommodations to a prospective or current employee for any condition related to pregnancy, childbirth, or related conditions, if the prospective or current employee requests such an accommodation. Additionally, the Act makes it unlawful for employers:

  • to take adverse action against an employee who requests or uses a reasonable accommodation for the foregoing purposes
  • to refuse to hire a person who is pregnant because of the pregnancy or related condition, provided such person is capable of performing the essential functions of the position with a reasonable accommodation
  • to require an employee to take a leave of absence if another reasonable accommodation may be provided to the known conditions related to the employee’s pregnancy without undue hardship. 

The Act also requires employers to notify employees of these rights. Employers must provide written notice to:

  • new employees at the commencement of employment
  • existing employees on or before April 1, 2018
  • employees who notify their employers of pregnancies or conditions related to their pregnancies within 10 days of such notification.
Existing employees were to have been notified of their rights under the Pregnant Workers Fairness Act on or before April 1, 2018.

Pregnancy Discrimination Act 

Employers should also be aware of the federal Pregnancy Discrimination Act (PDA), which prohibits employers from intentionally discriminating against pregnant employees or maintaining policies that adversely affect pregnant employees.


The PDA prohibits discrimination because of pregnancy or childbirth. In addition, a court recently held that the PDA protects women from discrimination based on the decision to have an abortion. 

The PDA does not prohibit adverse employment decisions based on employee conduct caused by the pregnancy. For instance, an employer may dismiss an employee for excessive tardiness, even if the tardiness is caused by the employee’s pregnancy-related morning sickness. However, an employer should be mindful of reasonable accommodation under the ADA in such circumstances.

Right to voluntary leave

The PDA requires that an employer provide pregnant women with at least the same benefits and leave time as other employees. For instance, if an employer grants short-term disability to all employees, it must allow a pregnant woman sufficient leave to recover from the childbirth. Likewise, if an employer allows employees to take leave for personal or family reasons, it must grant this same leave to pregnant employees.

Health insurance

The PDA prohibits employers from discriminating against pregnancy in their health insurance programs. Under the PDA, an employer must:

  • provide the same pregnancy benefits to unmarried employees that it provides to married employees
  • reimburse pregnancy-related expenses under the same method used to reimburse other medical conditions
  • provide the same level of health insurance for spouses of male employees as it does for spouses of female employees.

Protection from hazardous work conditions

An employer faces a unique dilemma when employing individuals to work under hazardous work conditions. If it forbids a pregnant woman from working in hazardous areas, it risks Title VII litigation. If it chooses not to exclude pregnant women from hazardous areas, it increases its exposure to claims if the child is born with injuries that can be tied to the hazardous environment The Supreme Court has held that it is a violation of Title VII to exclude pregnant women from hazardous positions and has suggested that an employer that fully informs a woman of the risks involved could shield itself from liability.

Sexual orientation and gender identity

Before June 2020, it was unclear whether employment discrimination on the basis of sexual orientation or transgender status was permissible under federal law. That changed on June 15, 2020, when the U.S. Supreme Court ruled that Title VII of the Civil Rights Act does in fact prohibit discrimination in the workplace on the basis of sexual orientation and transgender status.

Massachusetts law, by contrast, has long provided protection against employment discrimination based on sexual preference and on gender identity. The law defines “gender identity” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” According to guidance issued by the Massachusetts Commission Against Discrimination in September 2016, gender identity protections encompass individuals who are transgender, as well as persons whose gender identity is consistent with their assigned sex at birth but who do not adopt or express traditional gender roles, stereotypes or cultural norms.

The law forbids an employer from discriminating in any aspect of employment, including:

  • recruitment
  • hiring
  • firing
  • pay
  • job assignments
  • promotions
  • layoff
  • training
  • fringe benefits
  • any other term or condition of employment.

No provision of Massachusetts law prohibits restrooms from being designated by gender. The MCAD, however, has taken the position that prohibiting an individual from using a restroom or other sex-segregated facility consistent with their gender identity is a violation of the law. The EEOC has also ruled that denying an employee access to a restroom corresponding to the employee's gender identity constitutes unlawful sex discrimination. Accordingly, both agencies have advised employers to provide their employees with access to any sex-segregated facility (e.g., bathrooms and locker rooms) based on the employee's stated gender identity.

Age discrimination

Employers are prohibited from engaging in age discrimination by both federal and Massachusetts laws. The relevant federal law is the Age Discrimination in Employment Act (ADEA), while the Massachusetts Fair Employment Practices Act includes the state prohibition on age discrimination.

The ADEA and Massachusetts law protect individuals who are 40 years of age or older from employment discrimination or retaliation based on age. These laws apply to both employees and applicants in public and private employment. 

Both laws make it unlawful for an employer to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including:

  • hiring
  • firing
  • promotion
  • layoff
  • compensation
  • benefits
  • job assignments
  • training.

The ADEA applies to employers with 20 or more employees, however, Massachusetts law applies to employers with six or more employees. The number of individuals employed at the time discrimination occurred (not the year in which the charge was filed or the action is filed in court) determines whether the number of employees is sufficient to invoke the protection of law.


Before an employee may bring a claim, she or he must file a charge with the respective administrative agency as a prerequisite. To proceed to court with a claim, the employee must file its charge with the EEOC within 180 days of the alleged discriminatory act or within 300 days with the MCAD.

Disparate treatment

Although plaintiffs may bring claims under the ADEA based on a disparate impact theory, most plaintiffs bring ADEA discrimination cases under the disparate treatment theory. Age discrimination claims have the same burdens of proof as those established for other forms of discrimination. Thus:

  • the plaintiff attempts to establish an inference of discrimination
  • the employer responds with a legitimate, nondiscriminatory explanation for its employment action
  • the plaintiff must prove that the employer’s reasoning is a falsehood to mask unlawful discrimination.

To establish an inference of age discrimination, a plaintiff must prove:

  • he or she is a member of the protected age group (40 years of age or older)
  • he or she was qualified for the position in question
  • despite being qualified, he or she was adversely affected
  • someone substantially younger, with similar or lesser qualifications, received the position (or other job benefit) denied to the plaintiff.

Common questions

  • Is it sufficient for a plaintiff to show that he was replaced by someone younger, or must the replacement be outside the protected age group (that is, under 40 years old)? The Supreme Court has held that an employee is not required to show that he was replaced by someone outside the protected age group. Thus, a 56-year-old employee may establish a case of age discrimination by alleging that he was terminated and replaced by an employee who was 40 years old. 
    However, the Supreme Court has also stated that the plaintiff’s replacement must be substantially younger. Thus, when an employer replaces a 68-year-old with a 67-year-old, the former employee will not be able to succeed on an age discrimination claim.
  • May a plaintiff bring a claim if there is no younger replacement at all? In limited instances, an employee may bring an age claim even when the employer has not replaced him. This situation typically arises after a reduction in force (RIF) when an employee alleges that his job was eliminated altogether because of his age and, thus, he cannot identify a younger replacement.

Defenses to an age discrimination claim

Bona fide occupational qualification

The bona fide occupational qualification (BFOQ) is a defense in which the employer concedes that age was considered in an employment practice or policy, but asserts that using age as a qualification is “reasonably necessary to the normal operation of the particular business.” The Supreme Court has adopted a two-part test for determining whether the BFOQ is a valid defense:

  1. The employer must prove that the challenged policy or practice is reasonably necessary to the essence of the employer’s business.
  2. The employer must demonstrate that it is compelled to rely on age as the determining factor for its practice or policy. 

The employer may demonstrate this second factor either by demonstrating that it has a substantial basis for believing that nearly all employees above a certain age lack the qualifications required for the position, or that it would be very impractical for the employer to test each individual employee to determine if he or she has the necessary qualifications.

Bona fide seniority system

The ADEA permits employers to implement a bona fide seniority system (such as a system that provides benefits based on length of job tenure) so long as the employer does not use the system to evade the purposes of the ADEA. To be valid, a seniority system may not require the involuntary retirement of any employee on the basis of age. Seniority systems typically favor rather than discriminate against older workers, and, thus, employees rarely challenge termination decisions based on them.

Employers must ensure that all benefit programs comply with the Older Workers Benefit Protection Act (OWBPA), which amended the ADEA to specifically prohibit employers from denying benefits to older employees. Under the OWBPA, any age-based reductions in an employer’s employee benefit plans must be justified by significant cost considerations. Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.   

The OWBPA includes a few exceptions to this cost-justification defense. For instance, while an early-retirement incentive program is generally legal, it will be invalid if it is involuntary or otherwise inconsistent with the purposes of the ADEA. The OWBPA also states that an employer may not reduce contributions to an employee’s pension plan for any age-related reason.

Good cause or reasonable factors other than age

An employment decision based on good cause or a reasonable factors other than age (RFOA) is lawful. An employer uses this defense when it terminates an employee for a legitimate business reason, such as poor performance. Courts have held that factors that correlate with age (such as pension eligibility, tenure, or seniority) typically fail to constitute an RFOA.

"Bona fide executives" or "high policymaking" employees

The ADEA and Massachusetts law allow an employer to enforce mandatory retirement at age 65 for “bona fide executives” or “high policymaking” employees. When determining whether a particular employee qualifies, courts consider the nature of the employee’s duties, responsibilities, and authority. The law requires that the employee have served in the bona fide executive position or the high policymaking position for at least two years, and the employer may require retirement only if the employee is entitled to an immediate, non-forfeitable, annual retirement benefit of at least $44,000 from the employer.

Reductions in Force

The central issue raised in ADEA claims involving a reduction in force (RIF) is the validity of the employer’s determination of which employees to layoff. There are several criteria on which employers may lawfully base layoff selections. Examples include:

  • performance, skill, and ability
  • productivity
  • lack of seniority.

Potential pitfalls

Employers invite liability during a RIF when they fail to articulate clear selection standards and review processes. Thus, it is important for employers to implement layoff procedures and to provide documentation justifying each termination based on factors other than age. 

Employers should confirm that supervisors are providing accurate evaluations to employees, and are documenting the process. Employees should know if they are performing poorly, so that they are not blindsided during a RIF. 

Employers should use two techniques to avoid the claims based on RIFs:

  1. consider a voluntary separation or early retirement incentive
  2. ensure that separation occurs across all age groups.

Waivers of age-related claims

At an employer’s request, an individual may agree to waive any age-related claims he may have under the ADEA and state law in exchange for some benefit to which he or she is not otherwise entitled. The OWBPA imposes specific requirements for releases of these claims. 

According to the OWBPA, in order for a waiver that is part of an individual separation to be valid, it must:

  • be in writing and in plain English
  • specifically refer to ADEA rights or claims
  • not waive rights or claims that may arise in the future
  • be in exchange for valuable consideration (for instance, money or any other benefit) in addition to any benefits or amounts to which the employee is already entitled
  • advise the employee in writing to consult with an attorney before signing the waiver
  • provide the employee at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

If an employer requests the waiver in connection with a termination or exit incentive program offered to a group of employees, the requirements are more extensive. In addition to these requirements, each employee must be given at least 45 days to consider the agreement. In addition, at the outset of the 45-day period, the employer must inform each eligible employee, in writing, of the class of eligible employees, the specific eligibility requirements, any applicable time limits on participation, the job titles and ages of all employees eligible or selected for the program, and the ages of all employees in the same job classification or organizational unit who are not eligible or selected.

Return of severance benefits

The ADEA tries to prevent employers from forcing employees into early retirement for the economic benefit of the company. Thus, while a release may prevent a separating employee from filing a lawsuit based on claims under the ADEA, the employee may challenge the validity of the release itself.

Suppose an employer implements an early-retirement incentive program and has the participants sign a release in exchange for additional severance benefits. The employees accept the benefits, but later wish to challenge the release, claiming they signed under duress. Must the employees return the benefits they have already accepted as a prerequisite to filing suit?
The Supreme Court has held that employees have no obligation to return benefits before filing a suit challenging the validity of a release. To require employees to tender back their benefits would have a crippling effect on the ability of employees to challenge releases obtained by illegal means such as misrepresentation or duress.

Discrimination based on genetic information

The Genetic Information Nondiscrimination Act  (GINA) and the Massachusetts Fair Employment Practices Act (FEPA) both prohibit discrimination based on an employee’s genetic information. The intent of these laws is to encourage employees and others to take advantage of genetic testing as part of their medical care.

The GINA and the FEPA prohibit employers from requesting, requiring, or purchasing genetic information of employees or their family members, and further prohibit employers from disclosing or making employment decisions on the basis any such information it has. The laws apply to the following employers:

  • private, and state and local government employers with 15 or more employees
  • employment agencies
  • unions
  • labor-management training programs
  • apprenticeship programs.
  • Congress and the Executive Office of the President
  • federal executive branch agencies.

Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area of the workplace, a co-worker, or someone who is not an employee, such as a client or customer.

It is unlawful to retaliate against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination. 


The definition of an employee and a family member is broader under the GINA than it is under other laws. The term “family members,” for instance, extends to an individual’s fourth degree relatives. Thus, the term includes such distant relatives as great-great-grandparents, and children of first cousins. The term “family members” also includes an employee’s adopted family members even though they do not share a common genetic makeup with the employee.  

“Genetic information,” includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. Genetic information about a family member’s disease or disorder is considered one’s “family history.” 

“Genetic tests” include any analysis of an individual’s DNA, RNA, chromosomes, proteins, or metabolites that detect genotypes, mutations, or chromosomal changes. Generally, these can include any number of tests that may reveal an increased risk of acquiring a particular disease. Tests that are not considered genetic tests are tests for HIV, cholesterol, and tests for the presence of drugs or alcohol.

Employer responsibilities

Employers generally may not request or require genetic information from their employees, even non-deliberately. According to the EEOC’s regulations, a request for genetic information includes “conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information,” as well as “actively listening to third-party conversations” and “making requests for information about an individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information.”

There are circumstances when an employer may legitimately come into possession of genetic information without violating GINA’s prohibition on requesting, requiring, or purchasing genetic information. However, any such acquired information must be kept confidential and not used by the employer. 

These circumstances include:

  • Where information is acquired inadvertently. 
  • Where information is acquired as part of health or genetic services, including wellness programs.
  • Where information is acquired in the form of family medical history in order to comply with the Family and Medical Leave Act (FMLA), or state or other local leave laws, or policies requiring return to work certification.
  • When information comes from sources that are commercially or publicly available, such as newspapers, books, magazines, and even electronic sources.
  • Where information is gathered as part of a legitimate genetic monitoring program required by law or provided on a voluntary basis. For instance, employers may be required to perform such tests to see if employees are being harmed by substances or energies in the workplace.
  • Where information is conducted by employers that do DNA testing for law enforcement purposes as a forensic lab, or for human remains identification.

Safe-harbor disclaimer

Whenever lawfully requesting information (such as on a physician’s confirmation of medical condition form) employers should include the following disclaimer on the request:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Whenever this notice is properly given it will provide a safe-harbor for employers, and any such acquisition will be considered inadvertent, and therefore not a GINA violation.

Recordkeeping requirements

GINA requires employers that are in possession of genetic information to keep it confidential, in the same file as medical information and not in the personnel file. Such information may be disclosed only under the following limited circumstances: 

  • to the employee or family member about whom the information pertains, upon receipt of the employee’s or family member’s written request
  • to an occupational or other health researcher conducting research in compliance with certain federal regulations
  • in response to a court order, except that the employer may disclose only the genetic information expressly authorized by the order
  • to government officials investigating compliance with Title II of GINA, if the information is relevant to the investigation
  • in accordance with the certification process for FMLA leave or state family and medical leave laws
  • to a public health agency, but only with regard to information about the manifestation of a disease or disorder that concerns a contagious disease that presents an imminent hazard of death or life-threatening illness.

Federal contractors and discrimination laws

Executive Order 11246 (EO 11246) prohibits companies holding contracts and subcontracts with the federal government from discriminating against employees or applicants on the basis of:

  • race
  • color
  • religion
  • sex
  • national origin

with respect to compensation.

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is the agency in charge of enforcing EO 11246 and regularly conducts compensation audits in order to detect systemic discrimination across pay grades (the purpose of the audit is not to detect isolated, individual cases of discrimination).

The OFCCP has established a set of guidelines to be used in enforcing the nondiscrimination requirements of EO 11246. The “interpretive guidelines” articulate the methods and legal and statistical standards that the OFCCP applies during routine compliance evaluations. The “self-evaluation guidelines” articulate the standards that contractors may voluntarily follow in order to audit their compensation practices for discrimination.

Interpretive guidelines

The OFCCP determines whether there is systemic compensation discrimination by analyzing the compensation of similarly situated employee groups. 

The OFCCP also conducts employee interviews to establish appropriate employees to compare based on job duties and position, and to investigate possible compensation discrimination. The agency rarely finds discrimination based on statistics alone and will almost always require anecdotal evidence of discrimination. The OFCCP explains its findings to the contractor and allows the contractor the opportunity to explain any disparities in compensation.

Self-evaluation guidelines

Under the guidelines, the OFCCP requires contractors to evaluate their own compensation systems to determine whether there are any race- or gender-based disparities. The contractor does not have to use the methods prescribed under the “interpretive guidelines.” However, should the contractor choose to use this method, the OFCCP will deem the contractor in compliance with EO 11246 and will orchestrate its compliance monitoring activities with the contractor’s self-evaluation approach.

Regardless of the statistical method, contractors are expected to group their employees into similarly situated employee groups and analyze these groups at least once per year. The contractor is obligated to investigate any statistically significant disparities. If the disparities are inexplicable, they must be remedied.

Avoiding discrimination claims

An employer should implement several measures to avoid employee claims of discrimination:

  • Update policies and apply them uniformly - An employer should confirm that all its policies comply with federal and state laws. In addition, it should be sure that all its supervisors understand the policies and apply them uniformly to employees. The employer should be able to demonstrate that it treats its employees similarly, regardless of their respective backgrounds.
  • Conduct honest employee evaluations - A performance evaluation is an effective tool in the defense of a discrimination claim. However, when a supervisor fails to take an evaluation seriously, it may ultimately assist an employee’s claim. For instance, an employer may have difficulty showing that it terminated an employee because of his or her poor performance when the employee received consistently positive performance evaluations. A plaintiff may use positive feedback as evidence that the employer’s purported reason for its decision is false. The employer should, therefore, train its supervisors to conduct honest performance evaluations.
  • Document poor performance/bad conduct - Similar to performance evaluations, conduct reports help an employer show an employee’s performance problems. The employer should educate its employees on its discipline policies, and document all disciplinary measures taken against an employee.
  • Provide employees with honest explanations for employment decisions - When an employer takes an adverse employment action (such as discipline) against an employee, the experience is unpleasant for both the employer and the employee. However, the employer must be candid with the employee when it discusses the reason for its decision. It should not downplay the seriousness of the conduct or policy violations to avoid an awkward confrontation. Doing so may assist the employee to establish that the employer’s reason for its decision was not the real reason.


Title VII of the Civil Rights Act (Title VII) prohibits an employer from retaliating against an applicant or employee because she or he opposed discrimination or participated in a Title VII process. Recently, the Supreme Court confirmed that an employee may also bring a retaliation claim under Section 1981. 

In order to establish a case of retaliation, an employee must be able to show that all of the following are true:

  • he or she engaged in a statutorily protected act
  • he or she suffered an adverse employment action
  • a causal connection exists between the two events.

Protected acts

Under Title VII’s participation clause, an employer may not discriminate against an employee because the employee participated in a Title VII process. Protected Title VII processes include:

  • filing a formal charge of discrimination against the employer
  • expressing an intention to file a charge
  • acting as a witness or testifying for a co-worker
  • refusing to act as a witness for the employer
  • assisting fellow workers in discrimination claims.

Under the opposition clause, an employer may not discriminate against an employee because the employee opposed an unlawful employment practice under Title VII. In situations where the employee opposes an employer’s lawful practice, the employee’s opposition is also protected conduct so long as the employee had a good-faith belief that the opposed practice constituted a violation of Title VII.

It is not always clear what type of conduct qualifies as protected “opposition.” Courts have held that the following activities constitute opposition, and are, therefore, protected conduct under Title VII of the Civil Rights Act:

  • complaining about sexual harassment
  • contacting an attorney to complain about sexual harassment
  • asking an employer whether race played a part in an employment decision
  • criticizing in a “quasi-social setting” an allegedly discriminatory hiring practice
  • indicating to a supervisor support for another employee who filed an EEOC charge
  • filing an Equal Pay Act complaint
  • discussing discriminatory activity – during an employer’s internal investigation – even if by merely responding to questions.

Conversely, courts have held that the following activities do not constitute opposition:

  • an African-American employee’s act of sending a letter to his employer asking to meet to discuss affirmative action and race relations issues
  • protesting an employer’s decision not to transfer the employee’s secretary, where the protest was not based on discrimination
  • vague complaints about “ethnicism” and/or hints of racism.

Adverse employment action

To show that an employment action was “adverse,” an employee need only establish that the action might have discouraged a reasonable employee from making or supporting a charge of discrimination. Therefore, the following actions could constitute adverse actions to support a retaliation claim:

  • termination
  • discipline, such as counseling or warnings
  • demotion
  • transfer
  • implementation of probationary period
  • failure to promote
  • negative references to potential employers
  • harassment.

Causal connection

In a retaliation case, the plaintiff bears the burden of proving that the employer took an adverse employment action in response to the plaintiff’s protected activity. One factor that courts consider is the amount of time that has elapsed between the protected activity and the adverse employment action. A short time period between the protected activity and the adverse employment action strengthens an employee’s allegation that the employment action was in response to the activity.