Retail Detail: Retailers With Facilities In MA And NJ: Beware of New Obligations In Those States

Transgender Protection In Massachusetts

The Massachusetts legislature passed a bill on November 16, 2011 that would extend the protections of the state’s anti-discrimination laws to transgender people. As such, Retailers with transgender employees will now be subject to discrimination lawsuits under state law. The bill also affords transgender employees and customers protection under existing hate crime laws.

The bill, entitled, An Act Relative to Gender Identity, seeks to amend the Commonwealth’s anti-discrimination laws to include “gender identity” as a new protected category. Gender identity would be defined 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.” (HB 3810).

According to the language of the bill, evidence of a person’s gender identity may include “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the person’s gender-related identity is sincerely held, as part of the person’s core identity.” (HB 3810). The bill also provides that while transgender people may not be discriminated against on the basis of their gender identity, transgender people may not assert their gender identity “for any improper purpose.” (HB 3810). Notably, the bill does not include language to protect transgender people in public accommodation settings, such as hotels, restaurants, clubs and restrooms. The bill’s caveat about “improper purposes” may have been an effort by the drafters to avoid having the bill defined as a “bathroom” bill. Many of the questions that arise around accommodating transgender individuals involve the bathroom to which they are assigned during their gender transition period.

The House enacted the bill by a vote of 93-60, and the Senate passed the bill on a voice vote. Governor Deval Patrick has 10 days to sign, amend or veto sections of the bill.

Earlier this week, Governor Patrick announced his intent to sign the bill, which would go into effect on July 1, 2012.

Massachusetts is not alone and national Retailers must be mindful that there are other states that already afford certain protections to transgender people in employment including California, Colorado, Connecticut, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Many local municipalities have also passed ordinances relative to gender identity. As always, it is important for employers confronted with employment issues to check their local laws for applicable guidance.

New Jersey’s New Posting and Notice Requirements

The New Jersey Department of Labor announced on November 4, 2011, that it is requiring employers to distribute to all employees, and post in locations accessible to all employees, a new notice — MW-400 (11/11) — that tracks and consolidates the record-keeping requirements currently found in the following NJ statutes: the Wage Payment Law, the Wage and Hour Law, the Prevailing Wage Act, the Unemployment Compensation Law, the Temporary Disability Benefits Law, the Family Leave Insurance Benefits Law, the Workers’ Compensation Law, and the Gross Income Tax Act. The notice must also contain information for employees on how they can file a complaint if they believe that their employer has failed to comply with the record-keeping requirements of these statutes. The New Jersey DOL has posted a sample notice on its web site.

If you are a Retail employer with facilities or stores in NJ, you must act now because you only have until December 7, 2011 to post the notice and distribute it to current employees. In addition, you must immediately provide this notice to all new hires as of November 7, 2011, and any new hires thereafter. If you fail to comply with these posting and notice requirements, you could incur a fine of up to $1,000, as well as criminal penalties.

With respect to the posting requirement, if you utilize an Internet or intranet site exclusively for employees and to which all employees have access, then you may satisfy the conspicuous posting requirement by posting the notice on that Internet or intranet site. Otherwise, you will have to post it in areas commonly used for similar postings. You may also use e-mail to distribute a written copy of the notice to each employee, and doing so will satisfy the distribution requirement. If e-mail is not available, then you will have to deliver a hard copy to each employee. In such circumstances, we recommend that you obtain a signed acknowledgment from each employee to evidence receipt.

By: Lynn Kappelman, Ed Cerasia, and Dana Fleming

Lynn Kappelman is a partner in Seyfarth's Boston office, Ed Cerasia is a partner in the firm's New York office, and Dana Fleming is an associate in the Boston office. If you would like further information, please contact your Seyfarth Shaw LLP attorney, Lynn Kappelman at lkappelman@seyfarth.com, Ed Cerasia at ecerasia@seyfarth.com or Dana Fleming at dfleming@seyfarth.com.