Individual Liability for Violators of New Massachusetts Gender Identity Public Accommodation Statute

Effective October 1, Massachusetts business owners who operate “places of public accommodations” will be prohibited from discriminating against individuals on the basis of gender identity. Specifically,

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.

(Transgender Public Accommodations Bill.) Massachusetts has prohibited transgender discrimination in housing, education, and employment since 2011, but has now extended the protections to public accommodations. The statute is aimed to protect individual’s rights to use the restrooms and locker rooms that match the person’s gender identity.

The statute directs the Massachusetts Commission Against Discrimination to “adopt, promulgate, amend and rescind rules and regulations or formulate policies and make recommendations to effectuate the purposes” of the act by September 1, 2016. When those rules and regulations are available, we will update readers.

In the meantime, there are certain steps that you can begin taking with your staff:

• First, educate. Make your staff aware that this statute applies to them. The statute does not only limit the anti-discrimination language to employers, but any manager, agent, or employee of the public accommodation.
• Second, educate (see how important that is). The more you staff knows about the law and the penalties for violation, the more cognizant they will be about making sure they act appropriately. Reinforce the penalties both under the law, and under your internal policies, for violation of your policies and the law.
• Finally, train, train, train. Train your staff on appropriate and inappropriate behavior with this issue. Reinforce the provisions of your anti-discrimination and anti-harassment policies. This would include how to respond to complaints by customers as a result of your following the law, as well as how to respond if other patrons attempt to limit other individuals access to facilities.

If you have further questions on best practices as to how to train and discuss this new law with your employees, contact a member of Verrill Dana’s Labor and Employment Practice Group to further discuss.