MCAD Gets Entrusted with ‘Sex,’ ‘Gender,’ and Other Key Issues

Defining Issues

By Peter Vickery

At the end of June, the Mass. Commission Against Discrimination (MCAD) was the subject of a report by the state auditor that criticized the agency’s delays, accounting practices, and security controls. Nevertheless, in July the Legislature decided to entrust the MCAD with the task of drafting rules and regulations around the Act Relative to Transgender Discrimination (commonly, and somewhat disparagingly, known as the Bathroom Bill).

But it chose not to make the MCAD the starting point for complaints under the new Pay Equity Act. Both pieces of legislation will affect employers in Western Mass., as would any changes the MCAD makes to its operating procedures in response to the audit report. But first, an overview of a recent decision from the agency’s Boston office that may influence the way employers across the commonwealth handle temporary disabilities.

MCAD & Carta v. Wingate Healthcare Inc.

The MCAD recently awarded a formerly full-time employee $25,000 for emotional distress in part because her employer had done such a good job of accommodating her need to work part-time. When the employer argued that keeping a part-time employee in a job that needed a full timer was an undue hardship, the hearing officer pointed to the fact that the company had coped well enough for five months and could show no loss of revenue or operational burden. The employer may regret having accommodated the disability so effectively.

One might think that the MCAD would want employers to create financially viable workarounds and reward them — or at least not punish them — for providing reasonable accommodations that do not hurt the bottom line. Instead, if this case is anything to go by, an employer’s success in accommodating a temporary disability can count as a strike against it.

The case, MCAD and Carta v. Wingate Health Care Inc., is the decision of a single hearing officer, not the full commission, but it provides insight into the agency’s thinking.

Cecelia Carta was the admissions coordinator for Wingate Healthcare. During 2010, she was off work for health reasons for one week in August and then from September to December. She returned to work part-time Dec. 6, working four hours a day, initially three days a week and later four days a week. On May 12, 2011, Wingate terminated Carta’s employment, telling her that the company needed a full-time admissions coordinator.

They asked her stay in touch and suggested she apply for her old job if and when she could return to full-time work. But they had not warned her (or, rather, presented no evidence that they had warned her) that unless she returned to full time she would be let go. This was an important omission.

Perhaps the HR people were worried that if they told Carta that the company really needed a full-time admissions coordinator as opposed to a part-time one, their words could be construed as in some way discriminatory. Whatever their reason, the lack of notice carried a price tag of $25,000.

The hearing officer did not order Wingate to pay lost wages because Carta had received $116,000 in workers compensation and $181,000 from two injury-related lawsuits. But Carta was entitled to $25,000 for the emotional distress of being terminated without having been warned that her employer would like her to resume work on a full-time basis some time in the not too distant future.

Why did Wingate terminate Carta? The company’s decision-makers seem to have thought that the medical documentation put them on solid ground. After all, at the end of April, Carta’s primary care physician had cleared her to return to full-time work “from a medical perspective.” The doctor deferred to her orthopedic surgeon for orthopedic clearance, and the May 10 orthopedic opinion stated no date for a return to full-time work.

After accommodating the disability for five months, and with no medical opinion showing that Carta could ever return to full-time work, plus the knowledge that Massachusetts anti-discrimination law does not require an employer to keep a disabled employee’s job open indefinitely, Wingate’s decision seems reasonable. But the hearing officer deemed the termination precipitate.

How long should Wingate have continued to employ Carta part-time? According to the MCAD:

“At the very least, [Carta] should have been permitted to complete her physical therapy over the course of the next month, and if then there was no definitive prognosis for improvement, and no anticipated return to full duty, [Wingate’s] obligation to continue providing an accommodation in the form of a part-time schedule would likely have ceased.”

Terminating Carta in the month of May rather than waiting until June cost Wingate $25,000.

State Auditor’s Report

Just before the Fourth of July holiday, the state auditor published an official report on the MCAD. In addition to noting the commission’s four-year backlog and revealing the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency, and poor book-keeping) it confirms a long-harbored suspicion: The MCAD asserts jurisdiction where it has none.

The statute that governs the MCAD clearly states: “Any complaint filed pursuant to this section must be so filed within 300 days after the alleged act of discrimination.” Nevertheless, the state auditor’s report reveals that in the three-year period of the audit (2012-2015) the MCAD processed more than 100 cases where it lacked subject matter jurisdiction because the applicable statute of limitations had run its course:

“[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions.”

Out of curiosity I asked the state auditor’s office how they determined this fact. It turns out they simply had to review the data in the MCAD’s case-management system. Perhaps if the MCAD confined itself to cases over which it does have jurisdiction, it would not have a four-year backlog. In any event, employers charged with discrimination should check the calendar and take steps to preserve their objections on the grounds of late filing. Having the case dismissed on jurisdictional grounds may offer little consolation if the dismissal only occurs after four years of investigation.

Act Relative to Transgender Discrimination

This is the statute that opponents dubbed the Bathroom Bill. After much brouhaha, the Legislature passed it and Gov. Baker signed it into law. It provides:

“An owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation, resort, or amusement that lawfully segregates or separates access to such place of public accommodation, or a portion of such place of public accommodation, based on a person’s sex shall grant all persons admission to, and the full enjoyment of, such place of public accommodation or portion thereof consistent with the person’s gender identity” (emphasis added).

So what exactly is gender identity? The statute defines it as follows: “‘Gender identity’ shall mean 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.”

Perhaps aware that the foregoing does little more than restate the term “gender identity” rather than actually defining it, and mindful of the potentially ticklish nature of proving any given individual’s gender identity, the Legislature chose to delegate the task of crafting evidentiary standards to a state agency. It selected one with an imaginative and expansive approach to statutory definitions, namely the MCAD. The report is due Sept. 1.

Pay Equity Act

Together with the Act Relative to Transgender Discrimination, the Legislature enacted the Pay Equity Act, which prohibits employers from discriminating upon the basis of gender. The previous statute declared that “no employer shall discriminate in any way in the payment of wages as between the sexes.” The new version provides: “No employer shall discriminate in any way on the basis of gender in the payment of wages.” So out with ‘sex’ and in with ‘gender.’

But isn’t gender the same as sex? No, not any more (see below).

As well as differing from the old equal-pay statute, the new law also differs from the Fair Employment Practices Act (Chapter 151B). Unlike employees bringing complaints under Chapter 151B, employees who wish to charge their employers with violations of the pay-equity statute will not have to start at the MCAD. They can go straight to court. Another novelty is that the new law encourages employers to conduct regular reviews of their pay practices.

If an employee sues, and the employer can show that it undertook a good faith self-evaluation of pay practices within the preceding three years (and made progress in remedying any discrepancies) it will have an affirmative defense. With an affirmative defense, the burden is on the party raising it, i.e. the employer. So with an eye to future lawsuits, employers may wish to keep in mind the need for persuasive evidence sufficient to prove that the good-faith evaluation took place.

But what exactly does the law prohibit? It forbids pay discrimination on the basis of gender, a word the Legislature chose not to define and whose legal meaning has changed over the past 20 years.

In 1996 the United States Court of Appeals for the Fourth Circuit was saying nothing controversial, let alone heretical, when it held that in Title VII cases the words ‘sex’ and ‘gender’ were interchangeable. Although the court observed that “some academic writers” were asserting “that ‘gender’ connotes cultural or attitudinal characteristics distinctive to the sexes, as opposed to their physical characteristics” and that the distinction might be useful “for some purposes,” it decided to stick with the practice of treating ‘gender’ as a synonym for ‘biological sex.’

A dozen years later, the Court of Appeals for the Third Circuit took a more flexible approach, noting that “gender, to some people, is a fluid concept.” After acknowledging that gender is “rooted in science and means sex — male or female — based on biology (chromosomes, genitalia)” the court noted that “the usage of the word is changing in some circles as a result of social and ideological movements that find the scientific meaning to be unsatisfactory or not sufficiently inclusive.” That usage is catching on.

Last year, Judge Mastroianni of the United States District Court for the District of Massachusetts stated that the statutory prohibition against discrimination “on the basis of sex” prohibits discrimination not only on the basis of “biological sex” but also on the basis of a “gender identity.”

As authority for this proposition he cited a First Circuit Court of Appeals decision from 2002 and a Supreme Court decision from 1989 that used the words ‘sex’ and ‘gender’ as synonyms, concluding that by using the words interchangeably those courts had interpreted ‘sex’ to encompass ‘gender identity.’ Of course, using the words interchangeably had led the Fourth Circuit to precisely the opposite conclusion, i.e. that the word ‘gender’ had its scientific meaning, namely biological sex. But that was way, way back in 1996.

Nowadays law must pay less heed to science, with its pettifogging attention to such trifles as chromosomes and genitalia, and more to the “social and ideological movements” that deem the scientific terminology “not sufficiently inclusive.” Therefore, so far as the judges are concerned, if a statute says that it prohibits discrimination on the basis of sex (a matter of biology) what the statute really prohibits is discrimination on the basis of gender (a matter of identity).

And what of a pay-equity statute prohibiting discrimination on the basis of gender (not sex); what does it forbid? We shall have to wait and see.

Peter Vickery practices employment law in Amherst; (413) 549-9933.