Code of Massachusetts Regulations › 804 CMR - MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION › Title 804 CMR 3.00 - Employment Discrimination › Section 3.01 - Employment Discrimination Guidelines

Current through Register 1525, July 5, 2024
(1) Definitions. As used in 804 CMR 3.00:
Age:
The term "age" includes any duration of time since an individual's birth of greater than 40 years.
Employee:
The term "employee" means an individual employed by an employer in a full or part time capacity.
The term "employee" does not include any individual employed in the domestic service of any individual.
The term "employee" does not include independent contractors.
Any individual employed by his or her parent(s), spouse or child, may not maintain a claim against his or her parent(s), spouse or child under the Fair Employment Practices Law.
Employer:
The term "employer" means one or more individuals, governments, government agencies, political subdivisions, labor organizations, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, or receivers, having six or more employees.
The term employer does not include a club exclusively social, or a fraternal association or corporation, if such club, association or corporation is not organized for private profit. Nonprofit clubs, associations, or corporations which are not exclusively social are not excluded.
Employment Agency:
The term "employment agency" includes any person or entity undertaking to procure employees or opportunities to work.
Fair Employment Practices Law:
The term "Fair Employment Practices Law" refers to M.G.L. c. 151B.
Protected Class:
The term "protected class status" shall include race, color, religious creed, national origin, sex, sexual orientation, age and ancestry. Qualified handicapped persons shall be deemed as members of a protected class and as such shall have protected class status.
Sexual Orientation:
The term "sexual orientation" shall not include persons whose sexual orientation involves children as the sex object.
(2) Applicable Law. The Fair Employment Practices Law, found in M.G.L. c. 151B, s.4 guarantees that no person shall suffer discrimination in the terms, conditions or privileges of his or her employment because of his or her protected class status, unless based upon a bona fide occupational qualification.
(3) Bona Fide Occupational Qualification.
(a) Application. M.G.L. c. 151B does not define the term "bona fide occupational qualification [BFOQ]," but the Commission in applying the term takes the position that it provides only the narrowest of exceptions.
(b) Examples. The Commission will decide BFOQ issues on a case by case basis, but the following examples may provide guidance.
1. A stereotypical view of a category of people will never be a BFOQ, e.g., "women cannot do heavy, physical labor." Thus, employment decisions based on a stereotype that the turnover rate among women is higher than men, or that women are less likely than men to assent to transfer to other locations of the employer in other cities or states, do not benefit from the BFOQ defense.
2. A mere customer or coworker preference is not a BFOQ, e.g., "customers prefer to deal with people of the same race" or "employees are uncomfortable working with people of different sexual orientation."
The following text is effective 12/29/95
3. There are some circumstances, involving customer preferences which may constitute BFOQs, including:
a. The need for a "genuine" member of a class to satisfy a job requirement may be a BFOQ,e.g., an actor to play a male role or a female to model feminine apparel.
b. Where considerations of personal privacy may be a necessary element of the conduct of a business, and therefore, a BFOQ, e.g, hiring only men or women respectively for duty in men's or women's washrooms or locker rooms.
4. The fact that the employer may have to provide separate facilities for a person of the opposite sex is not a BFOQ.
5. The fact that members of one group have been traditionally hired is not a BFOQ.