Date: Tue, 18 Jul 95 14:34:14 PDT From: bjb@macsch.com (Bryan J. Blumberg) ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH CHAPTER 6. The Governor, Lieutenant Governor and Council, Certain Officers Under the Governor and Council, and State Library [COMMITTEE ON EDUCATIONAL POLICY] Mass. Ann. Laws ch. 6, @ 18B (1994) @ 18B. Public Education Nominating Council; Duty; Membership; Vacancies; Consideration of Candidates. (a) A public education nominating council is hereby established to advise the governor with respect to appointments to the board of education, the higher education coordinating council, and all boards of trustees of community colleges, state colleges, and the University of Massachusetts, other than the student and alumni trustees elected pursuant to section twenty-one of chapter fifteen A, and in the case of the university, pursuant to section one A of chapter seventy-five. Said council shall consist of not fewer than twelve nor more than fifteen members and shall act with the concurrence of at least a majority of its members. (b) Members of the council shall be appointed to serve without compensation for terms coterminous with that of the governor. Members may be reimbursed for all expenses reasonably incurred in the performance of their duties. Any succeeding appointments and vacancies on the council shall be filled by the governor. A member of the council shall be considered a "person employed by the commonwealth for compensation" for the purposes of section thirteen of chapter fifty-five. (c) The governor shall from time to time select one member to serve as chair of the council. The council shall adopt and make public by-laws for the conduct of its affairs. All records and deliberations with respect to persons under consideration as nominees or prospective nominees shall be held in confidence by the council but shall be available to the governor and the governor's representatives. (d) Whenever a vacancy occurs or is expected to occur on the board of education, the higher education coordinating council or on a board of trustees, the governor shall notify the council. The council shall submit to the governor a list of persons who, in the judgment of the council, are qualified and willing to serve as members or trustees. Said list shall include at least twice as many names as there are vacant positions. The governor may appoint any person whose name is forwarded to him by the council. If the governor declines to appoint a person from any such list, the council shall submit additional names for that vacancy. (e) In considering candidates, the council shall seek persons of the highest quality who, by experience, temperament, ability and integrity will provide policy direction and oversight for the commonwealth's educational system and its community colleges, state colleges, and the University of Massachusetts. Candidates shall be evaluated according to law and without regard to race, religion, sex, age, national or ethnic origin, or political affiliation. There shall be persons from diverse cultural, racial, social, geographic and ethnic backgrounds on the council. No member of the council may be considered for appointment to any board while a member of the council. HISTORY: Added by 1991, 142, @ 3, approved July 11, 1991, effective by act of Governor, Aug 9, 1991. LEVEL 1 - 2 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH CHAPTER 22C. The Department of State Police Mass. Ann. Laws ch. 22C, @ 32 (1995) @ 32. Definitions Applicable to Sections 33 through 35. For the purposes of sections thirty-three to thirty five, inclusive, the following words shall have the following meanings:-- "Crime reporting unit", a joint project of the department of state police and the criminal history systems board charged with the responsibility of collecting incident reports submitted by state, local and campus police departments and other law enforcement authorities and disseminating periodic reports analyzing and interpreting crime rates and trends in the commonwealth. "Hate crime", any criminal act coupled with overt actions motivated by bigotry and bias including, but not limited to, a threatened, attempted or completed overt act motivated at least in part by racial, religious, ethnic, handicap, gender or prejudice, or which otherwise deprives another person of his constitutional rights by threats, intimidation or coercion, or which seek to interfere with or disrupt a person's exercise of constitutional rights through harassment or intimidation. Hate crime shall also include, but not be limited to, acts that constitute violations of sections thirty-seven and thirty-nine of chapter two hundred and sixty-five, section one hundred and twenty-seven A of chapter two hundred and sixty-six and chapter two hundred and seventy two. "Hate crime data", information, incident reports, records and statistics relating to hate crimes, collected by the crime reporting unit. "Incident report", an account of occurrence of a hate crime received or collected by the crime reporting unit. HISTORY: Added by 1991, 412, @ 22, approved Dec 27, 1991, by @ 139, effective July 1, 1992. Amended by 1992, 59, approved June 3, 1992, effective 90 days thereafter. NOTES: EDITORIAL NOTE-- The 1992 amendment rewrote the definition of "Hate crime" by inserting after "ethnic, handicap" the word ", gender". CROSS REFERENCES-- Direction that criminal justice training council provide instruction for police officers in responding to hate crimes as defined in this section, ALM GL c 6 @ 116B. ANNOTATIONS-- Validity, construction, and effect of "hate crimes" statutes, "ethnic intimidation" statutes, or the like. <<=1>> 22 ALR5th 261. LEVEL 1 - 3 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XII. EDUCATION CHAPTER 71. Public Schools SCHOOLHOUSES Mass. Ann. Laws ch. 71, @ 89 (1995) @ 89. Charter Schools. A charter school shall be a public school, operated under a charter granted by the secretary of education, which operates independently of any school committee and is managed by a board of trustees. The board of trustees of a charter school, upon receiving a charter from the secretary of education, shall be deemed to be public agents authorized by the commonwealth to supervise and control the charter school. The purposes for establishing charter schools are: (1) to stimulate the development of innovative programs within public education; (2) to provide opportunities for innovative learning and assessments; (3) to provide parents and students with greater options in choosing schools within and outside their school districts; (4) to provide teachers with a vehicle for establishing schools with alternative, innovative methods of educational instruction and school structure and management; (5) to encourage performance-based educational programs and; (6) to hold teachers and school administrators accountable for students' educational outcomes. Persons or entities eligible to submit an application to establish a charter school shall include, but not be limited to, a business or corporate entity, two or more certified teachers or ten or more parents. Said application may be filed in conjunction with a college, university, museum or other similar entity. Private and parochial schools shall not be eligible for charter school status. The secretary of education shall establish the information needed in an application for the approval of a charter school; provided, however, that said application shall include the method for admission to a charter school. There shall be no application fee for admission to a charter school. Applications to establish a charter school shall be submitted each year by February fifteenth. The secretary of education shall review the applications no later than March fifteenth. The secretary of education shall make the final determination on granting charter school status and may condition charters on the charter school's taking certain actions or maintaining certain conditions. No more than twenty-five charter schools shall be allowed to operate in the commonwealth at any time. Of these, no more than five shall be located in the city of Boston; no more than five shall be located in the city of Springfield; and no more than two shall be located in any other city or town. Under no circumstances shall the total number of students attending charter schools in the commonwealth be allowed to be greater than three-quarters of one percent of the total number of students attending public schools in the commonwealth. A charter school established under a charter granted by the secretary shall be a body politic and corporate with all powers necessary or desirable for carrying out its charter program, including, but not limited to, the following: (a) to adopt a name and corporate seal; provided, however, that any name selected must include the words "charter school"; (b) to sue and be sued, but only to the same extent and upon the same conditions that a town can be sued; (c) to acquire real property, from public or private sources, by lease, lease with an option to purchase, or by gift, for use as a school facility; (d) to receive and disburse funds for school purposes; (e) to make contracts and leases for the procurement of services, equipment and supplies; provided, however, that if the board intends to procure substantially all educational services under contract with another person, the terms of such a contract must be approved by the secretary, either as part of the original charter or by way of an amendment thereto; provided, further, that the secretary shall not approve any such contract terms, the purpose or effect of which is to avoid the prohibition of this section against charter school status for private and parochial schools; (f) to incur temporary debt in anticipation of receipt of funds; (g) to solicit and accept any grants or gifts for school purposes; (h) to have such other powers available to a business corporation formed under chapter one hundred and fifty-six B that are not inconsistent with this chapter. Charter schools shall be open to all students, on a space available basis, and shall not discriminate on the basis of race, color, national origin, creed, sex, ethnicity, mental or physical disability, age, ancestry, athletic performance, special need, or proficiency in the English language, and academic achievement. Charter schools may limit enrollment to specific grade levels or areas of focus of the school, such as mathematics, science or the arts. A charter school may establish reasonable academic standards as a condition for eligibility for applicants. Preference for enrollment in a charter school shall be given to students who reside in the city or town in which the charter school is located. If the total number of students who are eligible to attend and apply to a charter school and who reside in the city or town in which the charter school is located, or are siblings of students already attending said charter school is greater than the number of spaces available, then an admissions lottery shall be held to fill all of the spaces in that school from among said students. If there are more spaces available than eligible applicants from the city or town in which said charter school is located and who are siblings of current students, and more eligible applicants than spaces left available, then a lottery shall be held to determine which of said applicants shall be admitted. There shall be no tuition charge for students attending charter schools. A student may withdraw from a charter school at any time and enroll in a public school where said student resides. A student may be expelled from charter school based on criteria determined by the board of trustees, and approved by the secretary of education, with the advice of the principal and teachers. A charter school may be located in part of an existing public school building, in space provided on a private work site, in a public building, or any other suitable location. A charter school may own, lease or rent its space. A charter school shall operate in accordance with its charter and the provisions of law regulating other public schools; provided, however, that the provisions of sections forty-one and forty-two shall not apply to employees of charter schools. Charter schools shall comply with the provisions of chapters seventy-one A and seventy-one B; provided, however, that the fiscal responsibility of any special needs student currently enrolled in or determined to require a private day or residential school shall remain with the school district where the student resides. Students in charter schools shall be required to meet the same performance standards, testing and portfolio requirements set by the board of education for students in other public schools. The board of trustees, in consultation with the teachers, shall determine the school's curriculum and develop the school's annual budget. Employees of charter schools shall be considered public employees for purposes of tort liability under chapter two hundred and fifty-eight and for collective bargaining purposes under chapter one hundred and fifty E. The board of trustees shall be considered the public employer for purposes of tort liability under said chapter two hundred and fifty-eight and for collective bargaining purposes under said chapter one hundred and fifty E. Teachers employed by a charter school shall be subject to the state teacher retirement system under chapter thirty-two and service in a charter school shall be "creditable service" within the meaning thereof. Each local school district shall be required to grant a leave of absence to any teacher in the public schools system requesting such leave in order to teach in charter schools. A teacher may request a leave of absence for up to two years. At the end of the two year period, the teacher may make a request to the superintendent that such leave be extended for an additional two years, and approval for said request shall not be unreasonably withheld or he may return to his former teaching position. At the end of the fourth year, the teacher may either return to his former teaching position or, if he chooses to continue teaching at the charter school, resign from his school district position. Notwithstanding section fifty-nine C, the internal form of governance of a charter school shall be determined by the school's charter. A charter school shall comply with all applicable state and federal health and safety laws and regulations. The children who reside in the school district in which the charter school is located shall be provided transportation to the charter school by the resident district's school committee on the same terms and conditions as transportation is provided to children attending local district schools. Students who do not reside in the district in which the charter school is located shall be eligible for transportation in accordance with section twelve B of chapter seventy-six. Each charter school shall submit to the secretary, to each parent or guardian of its enrolled students, and to each parent or guardian contemplating enrollment in that charter school an annual report. The annual report shall be issued no later than August first of each year for the preceding school year. The annual report shall be in such form as may be prescribed by the secretary of education and shall include at least the following components: (a) discussion of progress made toward the achievement of the goals set forth in the charter; (b) a financial statement setting forth by appropriate categories, the revenue and expenditures for the year just ended. Individuals or groups may complain to a charter school's board of trustees concerning any claimed violation of the provisions of this section by the school. If, after presenting their complaint to the trustees, the individuals or groups believe their complaint has not been adequately addressed, they may submit their complaint to the secretary of education who shall investigate such complaint and make a formal response. A charter granted by the secretary of education shall be for five years. The secretary of education may revoke a school's charter if the school has not fulfilled any conditions imposed by the secretary of education in connection with the grant of the charter or the school has violated any provision of its charter. The secretary may place the charter school on probationary status to allow the implementation of a remedial plan after which, if said plan is unsuccessful, the charter may be summarily revoked. The secretary shall develop procedures and guidelines for revocation and renewal of a school's charter. Notwithstanding the foregoing, no school building assistance funds, so-called, shall be awarded to a charter school for the purpose of constructing, reconstructing or improving said school. Charter schools shall be funded as follows: If a student attending a charter school resides in a community with a positive foundation gap, the district of the city or town in which said student resides shall pay to the charter school an amount equal to the average cost per student in said district. If a student attending a charter school resides in a community that does not have a positive foundation gap pursuant to chapter seventy, the district of the city or town in which said student resides shall pay to the charter school an amount equal to the lesser of: (1) the average cost per student in said district; and (2) the average cost per student in the district in which the charter school is located. HISTORY: Added by 1993, 71, @ 55, approved, with emergency preamble, June 18, 1993 (see Editorial note below) . NOTES: EDITORIAL NOTE-- Sections 67, 77 and 104, of the inserting act provide as follows: Section 67. This act shall apply to all cities, towns, and regional school districts, notwithstanding section twenty-seven C of chapter twenty-nine of the General Laws and without regard to any acceptance or appropriation by a city, town, or regional school district or to any appropriation by the general court. Section 77. The provisions of sections one J and one K of chapter sixty-nine of the General Laws and sections forty-one, forty-two, and eighty-nine of chapter seventy-one of the General Laws shall not apply to employees subject to collective bargaining agreements executed prior to the effective date of this act insofar as such collective bargaining agreements are in conflict with said sections. Collective bargaining agreements effective after the date of this act shall be subject to the provisions of said sections. Section 104. No charter school, established pursuant to section eighty-nine of chapter seventy-one of the General Laws may be authorized to open prior to the school year beginning in the fall of nineteen hundred and ninety-five. In the year nineteen hundred and ninety-eight, the general court shall study the effects of the limits on the number of charter school students and shall consider possible increases or decreases. Notwithstanding any reduction in the limit on the number of students allowed to attend charter schools, students enrolled in charter schools shall have a right to continue in that school through its highest grade level unless expelled for cause. CODE OF MASSACHUSETTS REGULATIONS-- Procedures for the establishment of charter schools, 601 CMR 1.00. LEVEL 1 - 4 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XII. EDUCATION CHAPTER 76. School Attendance Mass. Ann. Laws ch. 76, @ 5 (1995) @ 5. Place of Attendance; Discrimination Prohibited. Every person shall have a right to attend the public schools of the town where he actually resides, subject to the following section. No person shall be excluded from or discriminated against in admission to a public school of any town, or in obtaining the advantages, privileges and courses of study of such public school on account of race, color, sex, religion, national origin or HISTORY: 1849, 117, @ 4; 1855, 256, @ 1; 1857, 132; GS 41, @@ 3, 9; PS 47, @@ 4, 10; 1894, 498, @@ 4, 11; 1898, 496, @ 7; RL 44, @ 3; 1911, 268, @ 1; 1913, 779, @ 3; 1971, 622, @ 1; 1973, 925, @ 9A. Amended by 1993, 282, approved Dec 10, 1993, effective 90 days thereafter. NOTES: EDITORIAL NOTE-- The 1971 amendment rewrote the section, to prohibit discrimination on the basis of sex or national origin as well as of race, color, or religion, in admission to, and in privileges, courses, etc. available in, any public school. The 1973 amendment affected the first and second sentences, changing "child" to "person". The 1993 amendment added "or at the end of the second sentence. CROSS REFERENCES-- Admittance of unvaccinated children to public schools, @ 15, infra. Duties of the school committee, ALM GL c 71 @ 37. FEDERAL ASPECTS-- Desegregation of public education, generally, <<=1>> 42 USCS @@ 2000c et seq. CODE OF MASSACHUSETTS REGULATIONS-- Access to equal educational opportunity, 603 CMR 26.01 et seq. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- 15 Am Jur 2d, Civil Rights @@ 60--92. 68 Am Jur 2d, Schools @@ 219 et seq. ANNOTATIONS-- Racial segregation. <<=3>> 38 ALR2d 1188. De facto segregation of races in public schools. <<=4>> 11 ALR3d 780. Discrimination in provision of municipal services or facilities as civil rights violation. <<=5>> 51 ALR3d 950. Federal court regulation of school construction or facility so as to avoid school segregation. <<=6>> 4 ALR Fed 979. Application of Title IX of the Education Amendments of 1972 <<=7>> (20 USCS @@ 1681 et seq.) to sex discrimination in educational employment. <<=8>> 54 ALR Fed 522. Racial discrimination in education--Supreme court cases. <<=9>> 24 L Ed 2d 765. LAW REVIEWS-- Discrimination and antidiscrimination in Massachusetts law. 44 B U L Rev 30. Leubsdorf, Completing the desegregation remedy. 56 B U L Rev 39. The Boston school desegregation case. 62 Mass L Q 137. FORM See forms in printed version. CASE NOTES 1. In general 2. Discrimination based on sex 3. Discrimination based on religion 1. In general RL 1902, ch. 44, @ 3, from which present section derives, was to be read in connection with Stats 1907 c 215, from which the present ALM GL c 76 @ 15 derives. <<=13>> Spofford v Carleton (1921) 238 Mass 528, 131 NE 314. Under the provisions of ALM GL c 71 @ 37 and ALM GL c 76 @ 5, which provisions have been construed broadly in favor of school committees, school committee may make all reasonable rules and regulations relative to discipline, management and government of the schools, and it may exclude child from school for sufficient cause. <<=14>> Leonard v School Committee of Attleboro (1965) 349 Mass 704, 212 NE2d 468, 14 ALR3d 1192. Under ALM GL c 71 @ 37 and ALM GL c 76 @ 5 school committees, school administrators and teachers are not restricted in maintaining discipline and decorum in classrooms to rules formally adopted by school committee and publicized before being put into effect but verbal directive of school principal followed by letter and later by ratification of school committee is sufficient. <<=15>> Leonard v School Committee of Attleboro (1965) 349 Mass 704, 212 NE2d 468, 14 ALR3d 1192. School children were not entitled to attend public schools in Town of Hamilton, although substantial portions of house lot were located both in Towns of Hamilton and Essex, because house itself was almost fully situated in Essex. <<=16>> Teel v Hamilton-Wenham Regional School Dist. (1982) 13 Mass App 345, 433 NE2d 907. Municipality is not required to provide school facilities for children living within its boundaries but on Federal reservation. 6 Op AG 593. There is a distinction between "actually resides," as used in this statute, and "where he has his domicile." 1947 Op AG 85. Board of Education may issue regulations under anti-discrimination law, ALM GL c 76 @@ 5 and 6, even though neither statute explicitly authorizes such regulations. 1974--1975 Op AG No. 1. 2. Discrimination based on sex School committee may properly find that length and appearance of hair of male student is such that he should be excluded from school until he has his hair cut, and this is so even though length and appearance of student's hair is essential to him in his profession as musician and vocalist. <<=19>> Leonard v School Committee of Attleboro (1965) 349 Mass 704, 212 NE2d 468, 14 ALR3d 1192. Proposed special legislation which would prohibit male students of particular high school from exercising rights under ALM GL c 75 @ 5 would be invalid. <<=20>> Opinion of Justices to Senate (1977) 373 Mass 883, 366 NE2d 733. Proposed legislation barring participation of girls and boys jointly in contact sports in public schools would violate state Equal Rights Amendment. <<=21>> Opinion of Justices to Governor (1977) 373 Mass 915; <<=22>> 371 NE2d 422, 90 ALR3d 1333. Rule of interscholastic athletic association imposing absolute bar on boys playing on a girls' team was intentional use of sex as discriminant and was forbidden by Equal Rights Amendment. <<=23>> Atty. Gen. v Massachusetts Interscholastic Athletic Asso. (1979) 378 Mass 342, 393 NE2d 284. Level of protection against sex discrimination provided by ALM GL c 76 @ 5 and Equal Rights Amendment to Massachusetts Constitution is same. <<=24>> Atty. Gen. v Massachusetts Interscholastic Athletic Asso. (1979) 378 Mass 342, 393 NE2d 284. Board of Education regulations providing in essence that participation on all extracurricular athletic teams, including contact sports, be free from restrictions based on sex and that entire physical education curriculum be free from restriction based on sex were valid exercise of board's authority and in accord with ALM GL c 76 @@ 5 and 16. 1975--1976 Op AG No. 66. 3. Discrimination based on religion Under this section it would not be competent for a school committee to pass order or regulation requiring pupils to conform to any religious rite or observance, or to go through with any religious forms or ceremonies, which were inconsistent with or contrary to their religious convictions or conscientious scruples. Spiller v Woburn (1866) 94 Mass 127. The pledge of allegiance to flag is an acknowledgment of sovereignty, promise of obedience, recognition of authority above will of the individual, to be respected and obeyed; it has nothing to do with religion. <<=26>> Nicholls v Lynn (1937) 297 Mass 65, 7 NE2d 577, 110 ALR 377. LEVEL 1 - 5 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XII. EDUCATION CHAPTER 76. School Attendance Mass. Ann. Laws ch. 76, @ 12B (1995) @ 12B. School Choice Program; Attendance at Schools in Other Districts; Determination of Space Availability; Funding; Information System. (a) As used in this section, the following terms shall have the following meanings: "Above foundation reimbursement amount", (i) for fiscal year nineteen hundred and ninety-four, fifty percent of the net losses due to the provisions of this section; provided, however, that if the amount lost by said district pursuant to subsection (f) is greater than two percent of the total school budget of said district, the amount of said reimbursement shall be equal to seventy-five percent of the net losses due to the provisions of this section; (ii) for fiscal year nineteen hundred and ninety-five, twenty-five percent of the net losses due to the provisions of this section; (iii) for all fiscal years after nineteen hundred and ninety-five, zero. "Receiving district", any city, town or regional school district within the commonwealth in which a child does not reside, but in which that child attends public school under the provisions of this section. "Sending district", any city, town or regional school district within the commonwealth in which a child resides, but in which that child does not attend public school under the provisions of this section. "State school choice limit", in fiscal year nineteen hundred and ninety-four, one percent of the total number of students attending public schools in the commonwealth; in fiscal year nineteen hundred and ninety-five, one and one-half percent of the total number of students attending public schools in the commonwealth; in fiscal year nineteen hundred and ninety-six, one and three-quarters percent of the total number of students attending public schools in the commonwealth; in fiscal year nineteen hundred and ninety-seven and thereafter, two percent of the total number of students attending public schools in the commonwealth; provided, however, that students enrolled under the program for the elimination of racial imbalance as provided in section twelve A shall not be counted toward these limits. (b) Notwithstanding the provisions of section twelve, or any other special or general law to the contrary, any child may attend a public school, in a city or town where he does not reside; provided, however, that the receiving district shall be paid by the commonwealth a tuition rate as established in subsection (f) . (c) Not later than May first of every year, the school committee of each city, town or regional school district shall submit a report to the department stating: (1) The capacity of each school in said city, town or regional school district for the following academic year. (2) The number of students expected to attend each school in said city, town or regional school district in the following academic year. (3) The number of students attending said school district under the terms of this section in the prior school year and the number of those students who are expected no longer to be attending said school district in the next school year. (4) The number of additional seats therefore available to non-resident students reduced by the number of students enrolled under the program for the elimination of racial imbalance as provided in section twelve A, in said charter school or each school in said city, town or regional school district. The board may require every district to update this report in whatever manner is required to effectuate the objectives of this section. (d) Each city, town or regional school district shall enroll non-resident students at the school of such non-resident student's choice; provided, however, that such receiving district has seats available as stated in said report; provided, however, that this obligation to enroll non-resident students shall not apply to a district for a school year in which its school committee, prior to June first, after a public hearing, adopts a resolution withdrawing from said obligation, for the school year beginning the following September. Any such resolution of a school committee shall state the reasons therefor, and such resolution with said reasons shall be filed with the department of education; provided, however, that said department shall have no power to review any such decision by a school committee. If the city, town or regional school district operates an intra-district choice plan, non-resident students may apply for schools on the same basis as resident students, but the intra-district choice plan may give preference to resident students in assigning students to schools. (e) Not later than the first day of July, each city, town or regional school district shall each year submit a non-resident attendance report to the board and to the state treasurer, certifying the number of non-resident applicants for each available seat in each school, the disposition of their applications, how many of said applicants will be attending the district in the next school year, the identity of the sending districts for those students, the annual amount of tuition for each such child and the total tuition owed to the district based on full or partial attendance, itemized by the amount attributable to each city or town of residence. The board may review said certification to determine that the amount of the individual tuition charged for each child is in accordance with the provisions of this section and shall inform the state treasurer of any errors. The department may also, on a post-audit basis, verify the admission and attendance of the number of children certified by each school district. In addition to the foregoing, all said districts shall, on October first and April first, report to the board and certify to the state treasurer accurate and up to date reports of all the information required in the non-resident attendance report. If the total number of students admitted to receiving districts pursuant to this section is greater than the state school choice limit, the board shall notify all districts that no more students may be accepted pursuant to this section. [Until June 30, 1995, subsections (f) and (g) read as follows:] (f) For each student enrolling in a receiving district, there shall be a school choice tuition amount. Said tuition amount shall be equal to seventy-five percent of the actual per pupil spending amount in the receiving district for such education as is required by such non-resident student, but not more than five thousand dollars; provided, however, that for special education students whose tuition amount shall remain the expense per student for such type of education as is required by such non-resident student. The state treasurer is hereby authorized and directed to deduct said school choice tuition amount from the total education aid, as defined in chapter seventy, of said student's sending district, prior to the distribution of said aid. In the case of a child residing in a municipality which belongs to a regional school district, the school choice tuition amount shall be deducted from said chapter seventy education aid of the school district appropriate to the grade level of the child. If, in a single district, the total of all such deductions exceeds the total of said education aid, this excess amount shall be deducted from other aid appropriated to the city or town. If, in a single district, the total of all such deductions exceeds the total state aid appropriated, the commonwealth shall appropriate this excess amount; provided, however, that if said district has exempted itself from the provisions of chapter seventy by accepting section fourteen of said chapter, the commonwealth shall assess said district for said excess amount. (g) The state treasurer is further directed to disburse to the receiving district an amount equal to each student's school choice tuition as defined in subsection (f) ; provided, however, that each public school district which admits children under the provisions of this section shall certify to the state treasurer the number of such children attending its public schools, the city or town of residence of each such child, the annual amount of tuition for each such child and the total tuition owed to the district based on full or partial attendance, itemized by the amount attributable to each city or town of residence; and, provided further, that such certification shall be made on October first of each year and April first of each year. Each school district submitting a certification to the state treasurer shall also submit a copy of said certification to the department of education. Said department may review said certification to determine that the amount of the individual tuition charged for each child is in accordance with the provisions of this section and shall inform the state treasurer of any errors. The department may also, on a post-audit basis, verify the admission and attendance of the number of children certified by each school district. [From and after June 30, 1995, subsections (f) and (g) are amended to read as follows:] (f) For each student enrolling in a receiving district, there shall be a school choice tuition amount. Said tuition amount shall be equal to seventy-five percent of the actual per pupil spending amount in the receiving district for such education as is required by such non-resident student, but not more than five thousand dollars; provided, however, that for special education students whose tuition amount shall remain the expense per student for such type of education as is required by such non-resident student. The state treasurer is hereby authorized and directed to deduct said school choice tuition amount from the total education aid, as defined in chapter seventy, of said student's sending district, prior to the distribution of said aid and to deposit said aid in the School Choice Tuition Trust Fund established by section twelve C. In the case of a child residing in a municipality which belongs to a regional school district, the school choice tuition amount shall be deducted from said chapter seventy education aid of the school district appropriate to the grade level of the child. If, in a single district, the total of all such deductions exceeds the total of said education aid, this excess amount shall be deducted from other aid appropriated to the city or town. If, in a single district, the total of all such deductions exceeds the total state aid appropriated, the commonwealth shall appropriate this excess amount; provided, however, that if said district has exempted itself from the provisions of chapter seventy by accepting section fourteen of said chapter, the commonwealth shall assess said district for said excess amount. (g) The state treasurer is further directed to disburse to the receiving district, from the School Choice Tuition Trust Fund established by section twelve C, an amount equal to each student's school choice tuition as defined in subsection (f) ; provided, however, that each public school district which admits children under the provisions of this section shall certify to the state treasurer the number of such children attending its public schools, the city or town of residence of each such child, the annual amount of tuition for each such child and the total tuition owed to the district based on full or partial attendance, itemized by the amount attributable to each city or town of residence; and, provided further, that such certification shall be made on October first of each year and April first of each year. Each school district submitting a certification to the state treasurer shall also submit a copy of said certification to the department of education. Said department may review said certification to determine that the amount of the individual tuition charged for each child is in accordance with the provisions of this section and shall inform the state treasurer of any errors. The department may also, on a post-audit basis, verify the admission and attendance of the number of children certified by each school district. (h) There shall be a parent information system established, maintained and developed by the board of education to disseminate to parents detailed and comparable information about each school system participating in the school choice program, so-called, which shall include, but not be limited to, information on special programs offered by the school, philosophy of the school, number of spaces available, transportation plans, class sizes, teacher/student ratios, and data and information on school performance that indicate its quality. Said information shall include the school profiles, so-called, developed pursuant to section one B of chapter sixty-nine. The board may include information regarding regional choice initiatives as deemed appropriate. The system shall have as its primary goal to ensure that all parents have an equal opportunity to participate in the program of interdistrict choice. The board of education, when disseminating this information shall encourage the parent and student to make at least one visit to the school of choice as part of the application procedure. (i) Subject to appropriation, the board of education shall develop and administer a school choice transportation reimbursement program for the purpose of providing reimbursement for the transportation of pupils enrolled under the provisions of this section. Pupils eligible for said reimbursement must be eligible to receive free or reduced cost lunches under eligibility guidelines promulgated by the federal government under <<=1>> 42 USC section 1758. The board may limit said reimbursement to a yearly amount. The types of transportation to be reimbursed pursuant to said program shall include, but need not be limited to, the following: (1) transportation by school buses provided by the sending or receiving district; (2) transportation provided by the parent or guardian of the child; (3) transportation provided by public transportation. All eligible pupils who attend a school district contiguous to the school district of residence of such pupil shall be eligible for said reimbursement. If cost-effective transportation alternatives exist for pupils who attend districts not contiguous to the school districts of residence of such pupil, the board may provide a transportation reimbursement. Said reimbursements may be paid to the district in which the pupil is enrolled, the district of residence of the student, or the parent, guardian or person acting as guardian of the student; provided, however, that said district or parent provide documentation of the transportation expenditure. The board of education shall promulgate regulations for the program to be placed on file with the joint committee on education, arts and humanities of the general court. The board of education shall disseminate information to parents and school systems detailing the availability of said transportation reimbursements. A full description of said school choice transportation reimbursement program shall be submitted to the house and senate committees on ways and means and shall not become effective until ninety days after said submission. Notwithstanding the second paragraph of section one, nothing in this section shall confer upon any student attending a private school any right to transportation or reimbursement therefor. (j) School committees may establish terms for accepting non-resident students; provided, however, that if the number of non-resident students applying for acceptance to said district exceeds the number of available seats, said school committee shall select students for admission on a random basis; provided, further, that said school committee shall conduct said random selection twice: one time prior to July first and one time prior to November first; provided, further, that no school committee shall discriminate in the admission of any child on the basis of race, color, religious creed, national origin, sex, age, ancestry, athletic performance, physical handicap, special need or academic performance or proficiency in the English language. The Massachusetts commission against discrimination, established by section fifty-six of chapter six, shall have jurisdiction to enforce the provisions of this section; provided, however, that all students described in subsection (m) shall be entitled to remain in the receiving districts they are attending or have been accepted to attend. Any school committee that accepts non-resident students under the provisions of this section shall notify each district from which it has accepted a non-resident student of its acceptance of that student; provided, however, that a school committee may not publicly release the names of students leaving or entering a district under the provisions of this section. Notwithstanding the preceding provisions of this paragraph, any sibling of a student already enrolled in the receiving district shall receive priority for admission to said district. (k) Any child accepted to attend a public school in a community other than the one in which he resides pursuant to this section shall be permitted to remain in that school system until his high school graduation, unless there is a lack of funding of the program as authorized by said sections. (l) Notwithstanding the provisions of this section or any general or special law to the contrary, any school district which admitted children on a private tuition basis prior to June thirtieth, nineteen hundred and ninety-one may continue, on that basis, to admit any child who attended its school system prior to that date, as well as any sibling or step-sibling of such child and any foster child residing in the home of such child. (m) Any student who, pursuant to the provisions of this section, has been attending or has been admitted to attend a public school of a city or town in which he does not reside and for whom the commonwealth has been paying tuition or, in the case of a student recently admitted, would be required to pay tuition in the coming year, shall be deemed to be a student admitted pursuant to paragraph (j) , and shall be subject to all of the provisions of this section; provided, however, that said students shall be allowed to remain in said school notwithstanding any determination of capacity or decision by the receiving district to withdraw made pursuant to this section. (n) Subject to appropriation, any sending district for which the provisions of subsection (f) result in a reduction in state aid shall be eligible to apply for a school choice reimbursement from the commonwealth. If net school spending in a sending district is greater than said foundation budget as defined in chapter seventy, the amount of said reimbursement shall be the above foundation reimbursement amount for that fiscal year. If net school spending in a sending district is less than said foundation budget, the amount of said reimbursement shall be equal to one hundred percent of the positive difference, if any, between (i) the amount transferred pursuant to subsection (f) , and (ii) the product of the number of students leaving the sending district and the average per pupil expenditure in the sending district for such education as is required by such nonresident student, for the period the child shall attend; provided, however, that if any district has exempted itself from the provisions of said chapter seventy by accepting section fourteen of said chapter seventy, the district shall be ineligible for a reimbursement under this subsection; provided, further, that if any district in which net school spending is greater than the foundation budget becomes a sending district for the first time in fiscal year nineteen hundred and ninety-five or any year thereafter, the reimbursement amount for that district in the first year that it is a sending district shall be the fiscal year nineteen hundred and ninety-four reimbursement amount; the reimbursement amount for the district in its second year as a sending district shall be the fiscal year nineteen hundred and ninety-five reimbursement amount. Said reimbursement application shall be submitted to the department of education on or before October first of each year together with an educational corrective action plan containing information, recommendations and suggestions relative to: (1) areas needing improvement within the school system of the applicant; (2) methods of improvement to be employed; (3) goals and objectives of said improvement; (4) evaluation and control methods to be used; (5) personnel to be engaged in such improvement; (6) results intended to be accomplished within one year from the date of application; and (7) methods of increasing parental involvement to be employed; provided, however, that any community or regional school district that has a previously approved plan need not refile said plan; and, provided further, that approval of said plan by said board shall act as a condition precedent to the distribution of said reimbursement to the applicant community or regional school district. Under no circumstances shall the total amount expended pursuant to subsections (h) and (i) and to reimburse sending districts pursuant to this paragraph, be greater than twenty million dollars. If, in any year, the total amount that would be required to reimburse said cities at said rates would be greater than twenty million dollars, then the reimbursement rates shall be reduced proportionately to those rates at which the total cost does not exceed twenty million dollars. (o) The commonwealth and the school committee of any town may accept funds from the federal government for the purposes of this section. Any amounts received by the school committee of any town from the federal government, from the commonwealth or from a charitable foundation or private institution shall be deposited with the treasurer of such town and held as a separate account, and may be expended by said school committee without further appropriation, notwithstanding the provisions of section fifty-three of chapter forty-four. Whenever such funds are received after the submission of the annual school budget, all or any portion thereof may be expended by the school committee without further appropriation, but shall be accounted for in the next annual school budget. HISTORY: 1966, 506; 1968, 622, @ 2; 1968, 735. Amended by 1991, 6, @ 23, approved March 22, 1991, by @ 96(a) , effective June 30, 1991; 1993, 71, @ 61, approved, with emergency preamble, June 18, 1993, by @ 105, effective upon passage; 1993, 151, @@ 39--41, approved Aug 19, 1993, by @ 150, effective upon passage; 1994, 60, @@ 97, 98, approved July 10, 1994, by @ 311B, effective June 30, 1995 (see 1994 note below) ; 1994, 60, @ 99, approved July 10, 1994, by @ 315, effective July 1, 1994. NOTES: EDITORIAL NOTE-- The first 1968 amendment struck out, in the first sentence of the second paragraph, "pursuant to the provisions of Public Law 89--10 of the Eighty-ninth Congress". The second 1968 amendment affected only the first paragraph, substituting "set and be paid a tuition rate which rate shall not exceed" for "be paid a sum equal to", and adding at the end of the paragraph a proviso relating to the acceptance of the sum set as tuition rate in a regional school district. The 1991 amendment rewrote the first paragraph, following "twelve,", inserting "or any other general or special law to the contrary,", preceding the first and second occurrences of "town", inserting "city or", following "fix,", inserting "if it chooses to admit nonresident students", substituting "provided, that" for "provided, however,", following "paid", inserting "by the commonwealth", following "tuition rate which", deleting "rate", following "for such school,", inserting "for such type of education as is required by such nonresident student,", substituting "and provided, further,", for "provided, however,", and added the second through the fifth sentences to the paragraph. The first 1993 amendment rewrote this section. Sections 67 and 105 of the amending act provide as follows: Section 67. This act shall apply to all cities, towns, and regional school districts, notwithstanding section twenty-seven C of chapter twenty-nine of the General Laws and without regard to any acceptance or appropriation by a city, town, or regional school district or to any appropriation by the general court. Section 105. Section sixty-one of this act shall take effect upon its passage; provided, however, that the provisions of subsections (c) , (d) , (h) , and (i) , and the requirement of random selection for admission in subsection (j) , of section twelve B of chapter seventy-six of the General Laws shall not apply with respect to the school year beginning in September of nineteen hundred and ninety-three. The second 1993 amendment, by @ 39, in the second sentence of subsection (f) , following "district" inserted "for such education as is required by such non-resident student"; by @ 40, in subsection (g) , added the proviso at the end of the first sentence and added the second through fourth sentences; and, by @ 41, substituted subsection (n) for one which read: "Subject to appropriation, any sending district for which the provisions of subsection (f) result in a reduction in state aid shall be eligible to apply for a school choice reimbursement from the commonwealth. If said sending district does not have a positive foundation gap, as defined in chapter seventy, the amount of said reimbursement shall be the above foundation reimbursement amount for that fiscal year. If said sending district does have a positive foundation gap, the amount of said reimbursement shall be equal to one hundred percent of the positive difference, if any, between (i) the amount transferred pursuant to subsection (f) , and (ii) the product of the number of students leaving the sending district and the average per pupil expenditure in the sending district; provided, however, that if any district has exempted itself from the provisions of said chapter seventy by accepting section fourteen of said chapter seventy, the district shall be ineligible for a reimbursement under this subsection; provided, further, that if any district that does not have a positive foundation gap becomes a sending district for the first time in fiscal year nineteen hundred and ninety-five or any year thereafter, the reimbursement amount for that district in the first year that it is a sending district shall be the fiscal year nineteen hundred and ninety-four reimbursement amount; the reimbursement amount for that district in its second year as a sending district shall be the fiscal year nineteen hundred and ninety-five reimbursement amount. Said reimbursement application shall be submitted to the department of education on or before October first of each year together with an educational corrective action plan containing information, recommendations, and suggestions relative to (1) areas needing improvement within the school system of the applicant, (2) methods of improvement to be employed, (3) goals and objectives of said improvement, (4) evaluation and control methods to be used, (5) personnel to be engaged in such improvement, (6) results intended to be accomplished within one year from the date of application, and (7) methods of increasing parental involvement to be employed; provided, however, that any community or regional school district that has a previously approved plan need not refile said plan; provided, further, that approval of said plan by said board shall act as a condition precedent to the distribution of said reimbursement to the applicant community or regional school district. Under no circumstances shall the total amount expended pursuant to subsections (h) and (i) and to reimburse sending districts, pursuant to this paragraph, be greater than twenty million dollars. If, in any year, the total amount that would be required to reimburse said cities at said rates would be greater than twenty million dollars, then the reimbursement rates shall be reduced proportionately to those rates at which the total cost does not exceed twenty million dollars.". The 1994 amendment, by @ 97, in subsection (f) , in the third sentence, added the words "and to deposit said aid in the School Choice Tuition Trust Fund established by section twelve C"; by @ 98, in subsection (g) , in the first sentence, after the words "receiving district", inserted ", from the School Choice Tuition Trust Fund established by section twelve C,"; and by @ 99, in subsection (j) , added a sentence which reads: "Notwithstanding the preceding provisions of this paragraph, any sibling of a student already enrolled in the receiving district shall receive priority for admission to said district." Section 311B of the amending act provides as follows: Section 311B. Sections ninety-seven, ninety-eight and one hundred shall take effect on June thirtieth, nineteen hundred and ninety-five. (Added by 1994, 126, @ 47, approved Sept 1, 1994, by @ 75, effective July 1, 1994) . Acts 1992, ch. 133, @ 6, entitled "An act making appropriations for the fiscal year nineteen hundred and ninety-three for the maintenance of the departments, boards, commissions, institutions and certain activities of the commonwealth, for interest, sinking fund and serial bond requirements and for certain permanent improvements", which was approved July 20, 1992, by @ 599, effective July 1, 1992, provides as follows: Section 6. Each public school district which admits children under the provisions of section twelve B of chapter seventy-six of the General Laws, as amended by section twenty-three of chapter six of the acts of nineteen hundred and ninety-one, shall certify to the state treasurer the number of such children attending its public schools, the city or town of residence of each such child, the annual amount of tuition for each such child and the total tuition owed to the district based on full or partial attendance, itemized by the amount attributable to each city or town of residence; provided, however, that notwithstanding the provisions of said section twelve B of said chapter seventy-six for the fiscal year nineteen hundred and ninety-three the amount of tuition payable for an individual student shall be limited to seventy-five percent of the amount otherwise payable under the provisions of said section twelve B of said chapter seventy-six, but in no event shall said amount exceed five thousand dollars; except for special education students whose tuition shall remain that which is payable under the provisions of said section twelve B of said chapter seventy-six; and provided further, that such certification shall be made on October first, nineteen hundred and ninety-two and April first, nineteen hundred and ninety-three; and provided further, that, notwithstanding the provisions of section three of this act to the contrary, including its notwithstanding clause, or section sixteen of this act, the state treasurer shall deduct said itemized amounts from the distributions to be made to each city or town from item 7061-0008 of section two of this act prior to said distribution; and provided further, that the amounts so deducted shall be credited to item 0610-1500 of section two of this act. Each school district submitting a certification to the state treasurer shall also submit a copy of said certification to the department of education. Said department may review said certification to determine that the amount of the individual tuition charged for each child is in accordance with the provisions of said section twelve B of said chapter seventy-six and this section and shall inform the state treasurer of any errors. The department may also, on a post-audit basis, verify the admission and attendance of the number of children certified by each school district. Notwithstanding the provisions of this section or any general or special law to the contrary, any school district which admitted children on a private tuition basis prior to June thirtieth, nineteen hundred and ninety-one may continue, on that basis, to admit any child who attended its school system prior to that date, as well as any sibling or step- sibling of such child and any foster child residing in the home of such child; provided, that any school system which admits children under the terms of this provision may also choose, or not choose, to admit children for whom the commonwealth pays the tuition required by section twelve B of chapter seventy-six of the General Laws. This paragraph shall not preclude any school system from admitting children, including those described above, under the provisions of said section twelve B of said chapter seventy-six of the General Laws. Notwithstanding the provisions of said section twelve B of said chapter seventy-six, or any other general or special law to the contrary, any child accepted to attend a public school in a community other than the one in which he resides may remain in that school system until the point of high school graduation regardless of any changes that may occur in the decision of the municipality to participate in this program, except a change which is based upon a lack of funding of the program as authorized by this section. There shall be a parent information system established, maintained and developed by the secretary of education to disseminate to parents detailed and comparable information about each school system participating in the school choice program, so called, which shall include, but not be limited to, information on special programs offered by the school, philosophy of the school, number of spaces available, transportation plans, class sizes, teacher/student ratios, and data and information on school performance that indicate its quality. The secretary of education, when disseminating this information shall encourage the parent and the student to make at least one on-site visit to the school of choice as part of the application procedure. FEDERAL ASPECTS-- Prohibition against use of appropriated federal funds for busing, <<=2>> 20 USCS @ 1228. Assignment or transportation of students generally, <<=3>> 20 USCS @@ 1651 et seq. Equal education opportunities and the transportation of students, <<=4>> 20 USCS @@ 1701 et seq. Desegregation of public education, generally, <<=5>> 42 USCS @@ 2000c et seq. CODE OF MASSACHUSETTS REGULATIONS-- School choice transportation reimbursement, 603 CMR 43.00 et seq. ANNOTATIONS-- Relief against school board's "busing" plan to promote desegregation. <<=7>> 50 ALR3d 1089. LEVEL 1 - 6 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XII. EDUCATION CHAPTER 78A. Youth Conservation and Service Corps Mass. Ann. Laws ch. 78A, @ 6 (1994) @ 6. Requirements for Operation of Corps. In addition to other requirements established by the commission, the corps shall: (a) require members without a high school diploma to enroll in a program to attain a general equivalency diploma; (b) require sponsors to provide pre-service and in-service training, along with general education that increases members academic, vocational, and social skills; (c) comply with federal, state, and local health and safety standards; (d) have the endorsement of the regional employment board chair representing the geographic area where the members serve; (e) require sponsors to provide career and educational guidance and training; (f) demonstrate that special-needs populations have been offered the opportunity to enroll in corps programs; (g) not allow corps funds to be used to supplant or replace paid employees; and (h) take steps to insure that no member or member applicant is discriminated against because of the individual's race, color, religious creed, ancestry, sex, national origin, or disability. HISTORY: Added by 1993, 19, @ 19, approved March 9, 1993, by @ 50, effective upon passage. LEVEL 1 - 7 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXI. LABOR AND INDUSTRIES CHAPTER 151B. Unlawful Discrimination Because of Race, Color, Religious Creed, National Origin, Ancestry or Sex Mass. Ann. Laws ch. 151B, @ 1 (1995) @ 1. Definitions. As used in this chapter 1. The term "person" includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and the commonwealth and all political subdivisions, boards, and commissions thereof. 2. The term "employment agency" includes any person undertaking to procure employees or opportunities to work. 3. The term "labor organization" includes any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection in connection with employment. 4. The term "unlawful practice" includes only those unlawful practices specified in section four. 5. 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, nor does it include any employer with fewer than six persons in his employ, but shall include the commonwealth and all political subdivisions, boards, departments and commissions thereof. Notwithstanding the provisions of any general or special law nothing herein shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, and which limits membership, enrollment, admission, or participation to members of that religion, from giving preference in hiring or employment to members of the same religion or from taking any action with respect to matters of employment, discipline, faith, internal organization, or ecclesiastical rule, custom, or law which are calculated by such organization to promote the religious principles for which it is established or maintained. 6. The term "employee" does not include any individual employed by his parents, spouse or child, or in the domestic service of any person. 7. The term "commission", unless a different meaning clearly appears from the context, means the Massachusetts commission against discrimination, established by section fifty-six of chapter six. 8. The term "age" unless a different meaning clearly appears from the context, includes any duration of time since an individual's birth of greater than forty years. 9. The term "housing or housing accommodations" includes any building, structure or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings. 10. The term "publicly assisted housing accommodations" includes all housing accommodations in (a) housing constructed after July first, nineteen hundred and fifty, and (1) which is exempt in whole or in part from taxes levied by the commonwealth or any of its political subdivisions; (2) which is constructed on land sold below cost by the commonwealth or any of its political subdivisions or any agency thereof, pursuant to the federal housing act of nineteen hundred and forty-nine; (3) which is constructed in whole or in part on property acquired or assembled by the commonwealth or any of its political subdivisions or any agency thereof through the power of condemnation or otherwise for the purpose of such construction; or (4) for the acquisition, construction, repair or maintenance of which the commonwealth or any of its political subdivisions or any agency thereof supplies funds or other financial assistance; (b) housing which is located in a multiple dwelling, the acquisition, construction, rehabilitation, repair or maintenance of which is, after October first, nineteen hundred and fifty-seven, financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof; provided, that such a housing accommodation shall be deemed to be publicly assisted only during the life of such loan and such guaranty or insurance; and (c) housing which is offered for sale, lease or rental by a person who owns or otherwise controls the sale of the same, and which is part of a parcel of ten or more housing accommodations located on land that is contiguous, exclusive of public streets, if (1) the acquisition, construction, rehabilitation, repair or maintenance of such housing accommodations is after October first, nineteen hundred and fifty-seven, financed in whole or in part by a loan whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof; provided, that such a housing accommodation shall be deemed to be publicly assisted only during the life of such loan and guaranty or insurance; or (2) a commitment issued by a government agency after October first, nineteen hundred and fifty-seven, is outstanding that acquisition of such housing accommodations may be financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof. 11. The term "multiple dwelling" means a dwelling which is usually occupied for permanent residence purposes and which is either rented, leased, let or hired out, to be occupied as the residence or home of three or more families living independently of each other. A "multiple dwelling" shall not be deemed to include a hospital, convent, monastery, asylum or public institution, or a fireproof building used wholly for commercial purposes except for not more than one janitor's apartment and not more than one penthouse occupied by not more than two families. The term "family", as used herein, means (a) a person occupying a dwelling and maintaining a household either alone or with not more than four boarders, roomers or lodgers; or (b) two or more persons occupying a dwelling, either living together and maintaining a common household, or living together and maintaining a common household with not more than four boarders, roomers or lodgers. A "boarder", "roomer" or "lodger" residing with a family means a person living within the household who pays a consideration for such residence and does not occupy such space within the household as an incident of employment therein. 12. The term "contiguously located housing" means (1) housing which is offered for sale, lease or rental by a person who owns or at any time has owned, or who otherwise controls or at any time has controlled, the sale of ten or more housing accommodations located on land that is contiguous (exclusive of public streets) , and which housing is located on such land, or (2) housing which is offered for sale, lease or rental and which at any time was one of ten or more lots of a tract whose plan has been submitted to a planning board as required by THE SUBDIVISION CONTROL LAW, as appearing in sections eighty-one K to eighty-one GG, inclusive, of chapter forty-one. 13. The term "other covered housing accommodations" includes all housing accommodations not specifically covered under subsections 10, 11 and 12 which are directly or through an agent made generally available to the public for sale or lease or rental, by advertising in a newspaper or otherwise, by posting of a sign or signs or a notice or notices on the premises or elsewhere, by listing with a broker, or by any other means of public offering. 14. The term "commercial space" means any space in a building, structure, or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied for the manufacture, sale, resale, processing, reprocessing, displaying, storing, handling, garaging or distribution of personal property; and any space which is used or occupied, or is intended, arranged or designed to be used or occupied as a separate business or professional unit or office in any building, structure or portion thereof. 15. The term "housing development" means multi-apartment units operated as contiguously located housing accommodations. 16. The term "qualified handicapped person" means a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap. 17. The term "handicap" means (a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment. 18. The term "sexual harassment" shall mean sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. Discrimination on the basis of sex shall include, but not be limited to, sexual harassment. 19. The term "handicapped person" means any person who has a handicap. 20. The term "major life activities" means functions, including, but not limited to, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 21. The term "accessible" means that housing is functional for and can be safely and independently used by a physically or mentally handicapped person and complies with rules or regulations established by the commission. HISTORY: 1946, 368, @ 4; 1950, 697, @@ 1, 2; 1957, 426, @@ 1, 6; 1959, 239, @ 1; 1962, 627; 1963, 197, @ 1; 1963, 469; 1963, 613, @ 1; 1965, 213, @ 1; 1966, 405; 1969, 216; 1979, 710, @ 1; 1983, 533, @ 2; 1984, 266, @ 4; 1986, 588, @ 2, approved December 9, 1986, effective 90 days thereafter; 1987, 473, @ 2, approved November 3, 1987, effective 90 days thereafter. Amended by 1989, 516, @ 1, approved Nov 15, 1989, effective 90 days thereafter; 1989, 722, @@ 11, 12, approved Jan 13, 1990, effective 90 days thereafter. NOTES: EDITORIAL NOTE-- Section 1 of the inserting act provides as follows: Section 1. The right to work without discrimination because of race, color, religious creed, national origin or ancestry is hereby declared to be a right and privilege of the inhabitants of the commonwealth. The 1950 amendment, by @ 1, added to paragraph 5 "in all respects except with respect to age", and by @@ 2, inserted paragraph 8. The 1957 amendment by @ 1 added subdivisions 9 through 11 (relative generally to housing accommodations) , and by @ 4 changed "unlawful employment practice" to "unlawful practice" twice in subdivision 4. The 1959 amendment added subsection 12. The 1962 amendment, in subsection 5, deleted at the end thereof, "in all respects except with respect to age". The first 1963 amendment added subsection 13. The second 1963 amendment, in subsection 7, changed the designation "Massachusetts fair employment practice commission" to "Massachusetts commission against discrimination". The third 1963 amendment, in subsection 9, substituting "housing or housing accommodations" for "housing accommodation". The 1965 amendment inserted subsection 14. The 1966 amendment rewrote subsection 8, making the term "age" include anyone between 40 and 65, in place of the former 45 and 65. The 1969 amendment rewrote subsection 5 to provide that a religious institution or organization which limits membership, enrollment, etc., to members of that religion may give preference in hiring or employment to members of the same religion. The 1979 amendment added subsection 15, "housing development.". The 1983 amendment added subsections 16 and 17, defining, respectively, a "qualified handicapped person" and a "handicapped person". The 1984 amendment rewrote the definition of "age" in subsection 8. The 1986 amendment added subsection 18 defining "sexual harassment". The 1987 amendment, in the opening clause of the first sentence of subsection 18, preceding "physical conduct", inserted "verbal or" and, in clause (b) , preceding "work performance", substituted "individual's" for "individuals". The first 1989 amendment, in the second sentence of subsection 5, defining "employer", inserted "Notwithstanding the provisions of any general or special law" at the beginning of the sentence, and added at the end a provision allowing religious or denominational groups to take action with respect to employment, discipline, faith, etc. on religious grounds. Sections 17 through 20 of the amending act provide as follows: Section 17. Nothing contained in this act shall be construed to authorize or require the department of social services to place any child under its jurisdiction, into the care of any person or persons, whose is an obstacle to the psychological, or physical well-being of the child, except when the child is the biological child of such person or persons, or where there are biological relatives willing to care for the child, if and when the permission of the natural parents has been obtained or indicated. This restriction shall include but not be limited to adoption, guardianship, and foster care. Section 18. It is hereby found and declared that the of a person is an invalid basis for discrimination in areas of housing, employment and the granting of credit. Therefore, the legislature explicitly states that nothing contained in this chapter shall be construed as an approval or endorsement of homosexuality or bisexuality. Section 19. Nothing in this act shall be construed so as to legitimize or validate a "homosexual marriage", so-called, or to provide health insurance or related employee benefits to a "homosexual spouse", so-called. Section 20. The provisions of this act are severable and if any of its provisions shall be held invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect or impair any other provisions. The second 1989 amendment, by @ 11, in subsection 17, substituted the definition of "handicap" for "handicapped person", and by @ 12, added subsections 19-21, defining "handicapped person", "major life activities" defining "accessible", respectively. Acts 1994, 37, @@ 1--10, entitled "An act empowering the Boston Fair Housing Commission to impose civil penalties and enforce by judicial power the provisions of title VIII", which was approved June 7, 1994, by @ 11, effective upon passage, provide as follows: Section 1. The following words used in this act shall have the following meanings: "Aggrieved person", any person who claims to have been injured by a discriminatory housing practice or believes such person will be injured by a discriminatory housing practice that is about to occur. "Commission", the Boston Fair Housing Commission. "Housing accommodations", any building, structure or portion thereof which is used or occupied or is intended, arranged or designed to be used or occupied as the home, residence or sleeping place of one or more human beings and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof. "Person", includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and the commonwealth and all political subdivisions and boards or commissions thereof. "Source of income", shall not include income derived from criminal activity. Section 2. Subject to the provisions of section five, classes protected by this act shall include race, color, religious creed, marital status, handicap, military status, children, national origin, sex, age, ancestry, and source of income. Section 3. All housing accommodations in the city of Boston shall be subject to this act, except as hereinafter provided. Nothing in this act shall apply to housing accommodations which are specifically exempted from coverage by this act, Title VIII of the Civil Rights Act of 1988, as amended, <<=1>> 42 U.S.C. Sections 3601 et seq. or chapter one hundred and fifty- one B of the General Laws. Nothing in this act shall apply to the leasing or rental to two or fewer roomers, boarders, or lodgers who rent a unit in a licensed lodging house. Section 4. Nothing in this act shall prohibit a religious organization, association or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of housing accommodations which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, marital status, handicap, military status, children, national origin, sex, age, ancestry, or source of income. Section 5. In the city of Boston, discriminatory housing practices are prohibited; provided, however, that no practice shall be prohibited hereunder unless such practice is also prohibited by the federal Fair Housing Act or chapter one hundred and fifty-one B of the General Laws. Section 6. Any person who violates the provisions of this act as to discriminatory housing practices shall, pursuant to the provisions of section seven, be subject to orders, temporary, equitable and legal, including compensatory damages, punitive damages or civil penalties and attorney's fees and costs. Section 7. The commission, established pursuant to chapter ten of the city of Boston Ordinance of 1982, as amended, shall, in addition to every other power heretofore or hereafter provided by statute or ordinance, have jurisdiction of all housing accommodations subject to this act. The commission shall have the following powers and duties as to such housing accommodations, except as to those housing accommodations in any building or structure containing one, two, three or four dwelling units, one of which is occupied by the owner thereof as his permanent residence. At any time after the filing of a complaint, and before or after the final disposition of a complaint, the commission may file a petition in Suffolk superior court or the Boston housing court departments of the trial court of the commonwealth seeking appropriate preliminary, temporary and/or injunctive relief against such respondent including orders or decrees restraining and enjoining the selling, renting or otherwise making unavailable to the complainant any housing accommodations with respect to which the complaint is made, pending the final determination of proceedings under this act. If the commission, after hearing, finds that a respondent has engaged in any unlawful practice as set forth in section five, it shall state its findings of fact and shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unlawful practice or violation. Such cease and desist orders and orders for affirmative relief may be issued to operate prospectively. Any such cease and desist order shall be subject to judicial review pursuant to section eight of this act. If the commission, after hearing, shall find that a respondent has engaged in any unlawful practice relative to housing or real estate, as set forth in section five, in addition to any other action it may take under this act, the commission may: (1) Award damages to the aggrieved party which damages shall include, but shall not be limited to, the expense incurred by the aggrieved party for obtaining alternate housing or space, for storage of goods and effects, for moving and for other costs actually incurred as a result of such unlawful practice or violation. Damages for emotional distress may also be awarded to the aggrieved party. Any respondent aggrieved by such an award of damages may, within ten days of notice of such award, bring a petition in Suffolk superior court or the Boston housing court departments of the trial court of the commonwealth addressed to the justice of the court, praying that the action of the commission in awarding damages be reviewed by said court; (2) Assess a civil penalty against the respondent, (a) in an amount not to exceed ten thousand dollars if the respondent has not been adjudged to have committed a prior discriminatory housing practice; (b) in an amount not to exceed twenty-five thousand dollars if the respondent has been adjudged to have committed one other discriminatory housing practic during the five year period ending on the date of the filing of the complaint; and (c) in an amount not to exceed fifty thousand dollars if the respondent has been adjudged to have committed two or more discriminatory housing practices during the seven year period ending on the date of the filing of the complaint. Any such penalties assessed hereunder shall be deposited in a trust fund to be administered by the city of Boston to be used solely for programs that benefit publicly assisted housing residents in the city of Boston; (3) Arrange to have adjudicated in court, at the commission's expense, the award of punitive damages against such respondent; and. (4) Arrange to have adjudicated in court, the allowance of reasonable attorney's fees and costs to any prevailing aggrieved person unless special circumstances make the recovery of such fees and costs unjust. The complainant alleging violations of this act shall be liable for attorney's fees and costs to the extent that his participation was frivolous, vexatious or for the purpose of harassment. The commission shall promulgate rules and regulations consistent with those of the Massachusetts commission against discrimination to effectuate the goals, policies and provisions of this act. The Massachusetts law of evidence shall apply in all proceedings before the commission. Section 8. The actions of the commission shall be subject to judicial review upon application as provided herein by any party aggrieved by a final order of the commission. Judicial review of a final commission order shall be in Suffolk superior court or the Boston housing court departments of the trial court of the commonwealth which shall have the authority to grant to any party, such temporary relief, restraining order, or other order as the court determines is just and proper. The reviewing court shall affirm, modify, or set aside, in whole or in part, the order, or remand the order for further proceedings and enforce the order to the extent that the order is affirmed or modified. Section 9. An aggrieved person, with or without filing a complaint at the commission and without regard to the status of such complaint, may commence a civil action in a court of competent jurisdiction not later than two years after the occurrence or termination of a discriminatory housing practice, or the breach of a conciliation agreement entered into with the commission, whichever occurs last, to obtain appropriate relief with respect to such discriminatory housing practice or breach; provided, however, that if an aggrieved person has consented to a conciliation agreement, such aggrieved person may not file a civil action with respect to the alleged discriminatory housing practice which forms the basis for such complaint except for the purpose of enforcing such agreement; and provided, further, that an aggrieved person may not commence a civil action with respect to an alleged discriminatory housing practice if a hearing commissioner determines that probable cause exists and a hearing has commenced before the commission. The computation of such two year period as to an alleged discriminatory housing practice, but not as to a breach of a conciliation agreement, shall not include any time during which an administrative proceeding is pending with respect to a complaint based upon such discriminatory housing practice. If the court finds that a discriminatory housing practice has occurred or is about to occur, an aggrieved person shall have available any and all remedies pursuant to this act. This section does not preclude the right of any aggrieved person to seek relief under chapter one hundred and fifty-one B of the General Laws. Section 10. This act is to be interpreted consistent with the provisions of Title VIII of the Civil Rights Act of 1988, as amended, <<=2>> 42 U.S.C. Sections 3601 et seq. and chapter one hundred and fifty-one B of the General Laws. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- Mass Jur, Personal Injury and Torts @@ 8:21, 8:33, 8:38. ANNOTATIONS-- Power of municipal corporation to enact civil rights ordinance. <<=3>> 93 ALR2d 1028. Civil rights: actionability under state statutes of discrimination because of complaining party's association with persons of different race, color, or the like. <<=4>> 35 ALR3d 859. Construction and operation of "equal opportunities clause" requiring pledge against racial discrimination in hiring under construction contract. <<=5>> 44 ALR3d 1283. Discrimination in provision of municipal services or facilities as civil rights violation. <<=6>> 51 ALR3d 950. What constitutes illegal discrimination under state statutory prohibition against discrimination in housing accommodations on account of marital status. <<=7>> 33 ALR4th 964. Exclusion or expulsion from association or club as violation of state civil rights act. <<=8>> 38 ALR4th 628. Award of attorneys' fees under @ 706(k) of Civil Rights Act of 1964 <<=9>> (4 2 USCS @ 2000e-5(k) ) authorizing court to allow prevailing party, other than Equal Employment Opportunity Commission or United States, reasonable attorney's fee as part of costs in action under equal employment opportunities part of Act. <<=10>> 16 ALR Fed 643. Exhaustion of state administrative remedies as prerequisite to federal civil rights action based on <<=11>> 42 USCS @ 1983. <<=12>> 47 ALR Fed 15. Right of employee under Title VII of Civil Rights Act of 1964 <<=13>> (42 USCS @ 2000e) to remedy for present and continuing loss of benefits resulting from past discrimination for which Title VII relief is not available. <<=14>> 49 ALR Fed 693. Employer's discharge of employee as unlawful employment practice in violation of @ 704(a) of Civil Rights Act of 1964 <<=15>> (42 USCS @ 2000e-3(a) ) where basis for discharge is employee's opposition to discriminatory conduct of co-worker. <<=16>> 49 ALR Fed 712. Propriety of treating separate entities as one for determining number of employees required by Title VII of Civil Rights Act of 1964 <<=17>> (42 USCS @ 2000e(b) ) for action against "employer." <<=18>> 49 ALR Fed 900. Circumstances in Title VII employment discrimination cases <<=19>> (42 USCS @@ 2000e et seq.) which warrant finding of "constructive discharge" of discriminatee who resigns employment. <<=20>> 55 ALR Fed 418. Admissibility, in action under Title VII of the Civil Rights Act of 1964 <<=21>> (42 USCS @@ 2000e et seq.) , of evidence of discriminatory practices predating the Act. <<=22>> 63 ALR Fed 891. Validity, construction, and application of provisions of @ 702 of Civil Rights Act of 1964 <<=23>> (42 USCS @ 2000e-1) exempting activities of religious organizations from operation of Title VII Equal Employment Opportunity provisions. <<=24>> 67 ALR Fed 874. Meaning of term "employer" as defined in @ 701(b) of Title VII of Civil Rights Act of 1964, as amended <<=25>> (42 USCS @ 2000e(b) ) , <<=26>> 69 ALR Fed 191. Who is "employee" within meaning of Age Discrimination in Employment Act <<=27>> (29 USCS @@ 621-634) , <<=28>> 69 ALR Fed 700. "Bona fide employee benefit plan" exception to general prohibition of age discrimination in employment <<=29>> (29 USCS @ 623(f) (2) ) . <<=30>> 70 ALR Fed 110. Employee committee or similar group as "labor organization" under the National Labor Relations Act <<=31>> (29 USCS @@ 151 et seq.) . <<=32>> 75 ALR Fed 262. What constitutes violation of <<=33>> 18 USCS @ 245(b) , prohibiting interference with civil rights. <<=34>> 76 ALR Fed 816. LAW REVIEWS-- Daly, Some runs, some hits, some errors--keeping score in the affirmative action ballpark from Weber v Johnson. 30 Boston College L Rev 1, December, 1988. 1987-1988 annual survey of labor relations and employment discrimination law. 30 Boston College L Rev 99, December, 1988. George, The back door: legitimizing sexual harassment claims. <<=35>> 73 BU L Rev 1, January 1993. The right to equal treatment: Administrative enforcement of antidiscrimination legislation. 74 Harvard L Rev 526. Schreiber, Massachusetts employment discrimination law. 63 Mass L Rev 247, December, 1978. Rousseau, The AIDS epidemic and the issues in the workplace. 72 Mass L Rev 51, June, 1987. Sager, Rights protected by the Massachusetts Civil Rights Act against interference on account of race or color. 17 Suffolk U L Rev 53, Spring, 1983. FORM See forms in printed version. CASE NOTES ALM GL c 151B @ 4(6) prohibits discrimination because of race, creed, color or national origin in renting or leasing of accommodations in multiple dwellings as defined in ALM GL c 1518 @ 1 clause 11. <<=40>> Massachusetts Com. Against Discrimination v Colangelo (1962) 344 Mass 387, 182 NE2d 595. For case where apartment was found to come within meaning of "other covered housing accommodations" under paragraph 13 of this section, see La Pierre v Massachusetts Com. against <<=41>> Discrimination (1968) 354 Mass 165, 236 NE2d 192. Labor union was not "person aggrieved" by company's discriminatory practice but could have standing in certain circumstances to represent members who suffered injury. Massachusetts Electric Co. v Massachusetts Com. against <<=42>> Discrimination (1978) 375 Mass 160, 375 NE2d 1192, 20 BNA FEP Cas 1804, 18 CCH EPD 8692. Denial of promotion to public employee because of her sex is constitutionally impermissible and violates statutory proscriptions. <<=43>> Blue Hills Regional Dist. School Committee v Flight (1981) 383 Mass 642, 421 NE2d 755. Common-law rule that labor unions as unincorporated voluntary associations are not legal entities for the purpose of suing or being sued abrogated. <<=44>> Diluzio v United Electrical, Radio & Machine Workers (1982) 386 Mass 314, 435 NE2d 1027, 95 CCH LC 55362, later app <<=45>> 391 Mass 211, 461 NE2d 766. Provisions of ALM GL c 151B were not applicable in case of alleged sexual harassment by employee's supervisor, because employer had fewer than 6 employees. <<=46>> O'Connell v Chasdi (1987) 400 Mass 686, 511 NE2d 349. Legislature's definition of sexual harassment in work place is applicable to sexual harassment in context of housing. Gnerre v Massachusetts Com. against <<=47>> Discrimination (1988) 402 Mass 502, 524 NE2d 84. Amendment made by St. 1989 c 516 @@ 1, 14 broadened statutory exemption previously accorded religious institutions and organizations and certain affiliated charitable or educational organizations from anti-discrimination provisions of ALM GL c 151B. <<=48>> Collins v Secretary of Commonwealth (1990) 407 Mass 837, 556 NE2d 348, 53 BNA FEP Cas 743. Effect of 1989 amendment (St. 1989, c 516, @@ 1, 14) is that, where action involved is calculated to promote religious principles for which organization is established or maintained, religion and affiliated organizations are not subject to various provisions of ALM GL c 151B. <<=49>> Collins v Secretary of Commonwealth (1990) 407 Mass 837, 556 NE2d 348, 53 BNA FEP Cas 743. Where telephone company employee who had suffered cognitive deficits after motor vehicle accident failed to carry his burden of proving that "gaff climbing" (climbing pole with pointed blades attached to legs) was not essential function of job he sought and failed gaff climbing test on two occasions, judge properly found that employee was not "qualified handicapped person" entitled to protection of ALM GL c 151B. <<=50>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. Employee who was not "qualified handicapped person" capable of performing job of "splice service technician" for telephone company was not entitled to relief under ALM GL c 151B. <<=51>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. Court may look to Federal Rehabilitation Act of 1973 [<<=52>> 29 USCS @ 794] and decisions construing and applying it for guidance in construing and applying Massachusetts employment discrimination statute in which discrimination on account of handicap is alleged. <<=53>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. Whether job function is "essential" or accommodation is "reasonable" for purposes of statute prohibiting employment discrimination against handicapped persons is legal conclusion subject to review. <<=54>> Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607 NE2d 1035, 2 AD Cas 540. 51-year-old plaintiff was within class of persons protected by age discrimination laws. <<=55>> Fontaine v Ebtec Corp. (1993) 415 Mass 309, 613 NE2d 881, summary op at (Mass) 21 M.L.W. 2637. Massachusetts Commission Against Discrimination correctly dismissed complaint against employer for alleged sexual discrimination on three distinct grounds, sexual harassment, unequal pay and denial of promotion, where employee did not take offense to or decline to participate in sexually-oriented conversations and activities, and therefore did not establish prima facie case of sexual discrimination. <<=56>> Ramsdell v Western Mass. Bus Lines, Inc. (1993) 415 Mass 673, 615 NE2d 192, 62 BNA FEP Cas 547, summary op at (Mass) 21 M.L.W. 2987. Employee claiming that employer refused to promote him to higher level of management prior to his retirement did not introduce enough evidence to make out prima facie case. <<=57>> Connors v New England Tel. & Tel. Co. (1986) 22 Mass App 243, 492 NE2d 1188, review den <<=58>> 398 Mass 1101, 495 NE2d 310. Person with heart disease known to employer at time of hiring and otherwise able to perform work qualifies for special protections of ALM GL c 151B @ 4(16) , prohibiting discrimination in employment because of handicap. <<=59>> Talbert Trading Co. v Massachusetts Comm'n Against Discrimination (1994) 37 Mass App 56, 636 NE2d 1351, 3 AD Cas 824. Unless target of discrimination complaint elects judicial determination after Massachusetts Commission Against Discrimination makes finding of probable cause of unlawful conduct, Commission adjudicates complaint. <<=60>> Commonwealth v Dowd (1994) 37 Mass App 164, 638 NE2d 923. The provisions of public construction contract forbidding discrimination in employment on basis of race, color, creed, etc. and requiring that maximum percentage of employees in all categories (if such qualified persons could be found) shall be members of minority group is not unconstitutional and is compatible with provisions of ALM GL c 151B. <<=61>> Associated General Contractors, Inc. v Altshuler (DC Mass) 361 F Supp 1293, affd (CA1 Mass) <<=62>> 490 F2d 9, 6 BNA FEP Cas 1013, 6 CCH EPD 8993, cert den <<=63>> 416 US 957, 40 L Ed 2d 307, 94 S Ct 1971, 7 BNA FEP Cas 1160, 7 CCH EPD 9285. Provision of public building construction contract in Massachusetts which required contractors to maintain minimum of 20 percent minority workers in each job category, while failing to make provision unconstitutional, placed burden on contractor to show he made every possible effort to comply with provision. <<=64>> Associated General Contractors, Inc. v Altshuler (1973, DC Mass) 361 F Supp 1293, 5 BNA FEP Cas 1105, 6 CCH EPD 8992, affd (CA1 Mass) <<=65>> 490 F2d 9, 6 BNA FEP Cas 1013, 6 CCH EPD 8993, cert den <<=66>> 416 US 957, 40 L Ed 2d 307, 94 S Ct 1971, 7 BNA FEP Cas 1160, 7 CCH EPD 9285. Claim for relief under ALM GL c 151B @ 1 is stated by untenured elementary school teacher who sues school committee and others alleging that defendant violated federal and state laws by denying teaching opportunity because of plaintiff's sex and by subjecting her to retaliation for making complaints to state antidiscrimination commission where school teacher alleges that, following return from pregnancy resignation and reactivation of her application for permanent position, she was not assigned position of employment although positions for which she qualified were available and where she alleges that principal told her she was "2-time loser" and that he would not recommend her for full time or permanent teaching position in referring to fact that she was pregnant for third time. <<=67>> Mamos v School Committee of Wakefield (1983, DC Mass) 553 F Supp 989, 30 BNA FEP Cas 1051. Handicap discrimination claim of former coordinator of machine parts control (MPC) unit of envelope maker must be denied summarily, where coordinator was laid off as part of force reduction involving substantial curtailment or even elimination of MPC unit, even though 7 of 8 employees tied to serious health conditions like coordinator's heart condition were also laid off, because coordinator does not dispute that in past employer had been supportive and accommodating with regard to work absences due to condition, and nothing in record besides weak statistical evidence permits inference that condition was considered in decision to terminate him. <<=68>> Martin v Envelope Div. of Westvaco Corp. (1994, DC Mass) 850 F Supp 83, 3 AD Cas 372, summary op at (DC Mass) 22 M.L.W. 1784. LEVEL 1 - 8 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1994, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXI. LABOR AND INDUSTRIES CHAPTER 151B. Unlawful Discrimination Because of Race, Color, Religious Creed, National Origin, Ancestry or Sex Mass. Ann. Laws ch. 151B, @ 3 (1994) @ 3. Functions, Powers and Duties of Commission. The commission shall have the following functions, powers and duties: 1. To establish and maintain its principal office in the city of Boston and such other offices within the commonwealth as it may deem necessary. 2. To meet and function at any place within the commonwealth. 3. To appoint such attorneys, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties. 4. To obtain upon request and utilize the services of all executive departments and agencies. 5. To adopt, promulgate, amend, and rescind rules and regulations suitable to carry out the provisions of this chapter, and the policies and practice of the commission in connection therewith. 6. To receive, investigate and pass upon complaints of unlawful practices, as hereinafter defined, alleging discrimination because of the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, ancestry, children, marital status, veteran status or membership in the armed services, the receiving of public assistance, or handicap of any person alleging to be a qualified handicapped person. The term " shall mean having an orientation for or being identified as having an orientation for heterosexuality, bisexuality, or homosexuality. The commission through its chairman may appoint a single commissioner to hold public hearings, as hereinafter provided, and to otherwise act on its behalf in connection therewith; provided, however, that a person aggrieved by the decision of said single commissioner may, within ten days of said decision, file an appeal for rehearing or review by the commission. 7. To hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and in connection therewith, to require the production for examination of any books or papers relating to any matter under investigation or in question before the commission. The commission may make rules as to the issuance of subpoenas by individual commissioners. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents or other evidence in obedience to the subpoena of the commission, on the ground that the testimony or evidence required by him may tend to incriminate him or subject him to a penalty or forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying. 8. To create such local or regional advisory boards as in its judgment will aid in effectuating the purposes of this chapter. Each advisory board shall consist of not less than eleven members. To the extent reasonably possible the members of each board shall include representatives of owners and brokers of residential property; major lending and credit institutions; major private employers; a local personnel or civil service administrator; local post-secondary educational institutions; local labor organizations; minority racial, ethnic and linguistic groups; women; elderly and handicapped persons; and recipients of public assistance. The members of such advisory boards shall serve without pay but shall be reimbursed for their actual and necessary expenses. The commission may provide technical and clerical assistance to the advisory boards. 9. To issue such publication and such results of investigations and research as in its judgment will tend to promote good will and minimize or eliminate discrimination because of the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age or ancestry. 10. To render each year to the governor and to the general court a full written report of its activities and of its recommendations. 11. To adopt an official seal. 12. To give its opinion upon questions submitted to it by any employer, employment agency or labor organization concerning whether any existing or proposed requirement for employment or for membership in such organization is a bona fide occupational qualification. Copies of such opinion shall be maintained in the files of the commission at its office and shall be available during regular business hours for public inspection. An opinion, or a request therefor, given under this subsection shall not operate to interfere with any proceeding under section five. 13. To adopt, promulgate, amend, and rescind rules and regulations, jointly with the attorney general, for the purpose of carrying out the provisions of subsection 13 of section four, including special regulations applicable to neighborhoods or areas found by the commission, with the concurrence of the attorney general, to be threatened with deterioration or instability associated with the entry or prospective entry into such neighborhoods or areas of a person or persons of a particular age, race, color, religion, national or ethnic origin, or economic level. 14. To accept gifts, contributions or bequests of funds or other aid from any source, whether public or private and from federal, state or other governmental bodies for the purpose of furthering the commissions mandate; provided, however, that all amounts received pursuant to this paragraph shall be deposited with the treasurer and made available to the commission for expenditure for any purposes authorized by this chapter. HISTORY: 1946, 368, @ 4; 1950, 697, @@ 3, 4, 5; 1960, 163, @ 1; 1965, 397, @@ 1, 2, 3; 1966, 410; 1968, 218; 1969, 877; 1971, 923; 1972, 786, @ 1; 1976, 463, @ 2; 1983, 533, @ 3. Amended by 1989, 516, @@ 2, 3, approved Nov 15, 1989, effective 90 days thereafter; 1990, 150, @@ 318, 319, approved Aug 1, 1990, by @ 383, effective July 1, 1990; 1991, 323, @ 1, approved Nov 27, 1991, effective 90 days thereafter; 1992, 286, @ 221, approved, with emergency preamble, Dec 23, 1992. NOTES: EDITORIAL NOTE-- The 1950 amendment, in paragraph 6, 8 and 9, inserted "age". The 1960 amendment, in paragraph 6, following "complaints", inserted "of unlawful practices, as hereinafter defined," and following "discrimination", deleted "in employment". The 1965 amendment made paragraphs 6, 8 and 9 cover discrimination because of sex. The 1966 amendment added paragraph 12. The 1968 amendment rewrote the second sentence of paragraph 12 to provide that copies of opinions shall be maintained in the files of the commission and shall be available for public inspection. The 1969 amendment, in paragraph 1, provided for the establishment of an office in Worcester. The 1971 amendment added a sentence to paragraph 6 relative to the appointment of a commissioner to hold hearings, and to an appeal from his decision. The 1972 amendment added paragraph 13. Section 3 of the amending act provides as follows: Section 3. The provisions of this act shall not be construed as limiting or impairing the provisions of any other law, rule, regulation, ordinance, or by-law designed to protect sellers or buyers of residential property or to prevent conduct inimical to the stability, development, or safety of residential areas. The 1976 amendment rewrote paragraph 8 to provide for the creation of local or regional advisory boards of at least 11 members with specified community representation, rather than local, regional or state-wide advisory agencies and conciliation councils as formerly, and to delete an enumeration of certain problems which the commission might empower such groups to study. The 1983 amendment rewrote the first sentence of paragraph 6, including therein discrimination because of the handicap of any person alleging to be a qualified handicapped person. The 1989 amendment, by section 2, in the first sentence of paragraph 6, inserted the reference to and inserted a new second sentence defining ", and by section 3, in paragraph 9, changed "publications" to "publication", and inserted the reference to Sections 17-20 of the amending act provide as follows: Section 17. Nothing contained in this act shall be construed to authorize or require the department of social services to place any child under its jurisdiction, into the care of any person or persons, whose is an obstacle to the psychological, or physical well-being of the child, except when the child is the biological child of such person or persons, or where there are biological relatives willing to care for the child, if and when the permission of the natural parents has been obtained or indicated. This restriction shall include but not be limited to adoption, guardianship, and foster care. Section 18. It is hereby found and declared that the of a person is an invalid basis for discrimination in areas of housing, employment and the granting of credit. Therefore, the legislature explicitly states that nothing contained in this chapter shall be construed as an approval or endorsement of homosexuality or bisexuality. Section 19. Nothing in this act shall be construed so as to legitimize or validate a "homosexual marriage", so-called, or to provide health insurance or related employee benefits to a "homosexual spouse", so-called. Section 20. The provisions of this act are severable and if any of its provisions shall be held invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect or impair any other provisions. The 1990 amendment, by @ 318, in paragraph 1, deleted "an office in the city of Worcester", and by @ 319, added paragraph 14. The 1991 amendment, in the first sentence of paragraph6 inserted ", children, marital status, veteran status or membership in the armed services, the receiving of public assistance," following "ancestry". The 1992 amendment substituted paragraph 1, for one which read: "To establish and maintain its principal office in the city of Boston,, and such other offices within the commonwealth as it may deem necessary.". CODE OF MASSACHUSETTS REGULATIONS-- Commission against discrimination; rules of procedure, 804 CMR 1.01 et seq. Discrimination in housing, 804 CMR 2.01 through 2.04. Guidelines for discrimination in employment, 804 CMR 3.01. Sex discrimination in employment, 804 CMR 3.02. Discrimination in credit, 804 CMR 7.01 et seq. Sex discrimination in employment with respect to maternity leave, 804 CMR 8.01. Hearings on compliance with equal employment policy and anti-discrimination and affirmative action plan, 804 CMR 9.01 et seq. TOTAL CLIENT SERVICE LIBRARY REFERENCES-- Mass Jur, Personal Injury and Torts @@ 8:59, 8:66, 8:77. ANNOTATIONS-- Application of state law to sex discrimination in employment. <<=8>> 87 ALR3d 93. Accommodation requirement under state legislation forbidding job discrimination on account of handicap. <<=9>> 76 ALR4th 310. Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap. <<=10>> 78 ALR4th 265. Discrimination "because of handicap" or "on the basis of handicap" under state statutes prohibiting job discrimination on account of handicap. <<=11>> 81 ALR4th 144. Age discrimination claimant's right to suit in federal court as affected by manner and timeliness of claimant's resort to state remedies under @ 14(b) of Age Discrimination in Employment Act <<=12>> (29 USCS @ 633(b) ) . <<=13>> 56 ALR Fed 627. When will Federal Government employee be excused from 30-day limitation period, established by Equal Employment Opportunity Commission regulation (29 CFR @ 1613.214(a) (1) (i) ) , for bringing matters relating to employment discrimination to attention of Equal Employment Opportunity Counselor. <<=14>> 57 ALR Fed 116. Validity, construction, and application of provisions of @ 702 of Civil Rights Act of 1964 <<=15>> (42 USCS @ 2000e-1) exempting activities of religious organizations from operation of Title VII Equal Employment Opportunity provisions. <<=16>> 67 ALR Fed 874. When is work environment intimidating, hostile, or offensive, so as to constitute sexual harassment in violation of Title VII of Civil Rights Act of 1964, as amended <<=17>> (42 USCS @@ 2000e et seq.) . <<=18>> 78 ALR Fed 252. LAW REVIEWS-- Schreiber, Massachusetts Employment Discrimination Law. 63 Mass L Rev 247, December, 1978. Schreiber, Employment Applications--What Massachusetts Employers Can and Cannot Ask. 65 Mass L Rev 69, March--April, 1980. FORM See forms in printed version. CASE NOTES Massachusetts Commission Against Discrimination has power to issue subpoena duces tecum for production of books and records during investigation and before finding of probable cause, as well as during hearing stage of proceedings. Massachusetts Com. against Discrimination v Liberty Mut. Ins. Co. (1976) <<=21>> 371 Mass 186, 356 NE2d 236, 14 BNA FEP Cas 733, 13 CCH EPD 11494. Massachusetts Commission Against Discrimination is not authorized by statute or rule to allow bringing of class action. Massachusetts Electric Co. v Massachusetts Com. against <<=22>> Discrimination (1978) 375 Mass 160, 375 NE2d 1192, 20 BNA FEP Cas 1804, 18 CCH EPD 8692. When rehearing before full commission of single commissioner's finding is not sought, function of full commission is to review record before single commissioner, and full commission may reach different ultimate conclusions and apply principles of law differently but may not disregard basic factual findings of single commission supported by record. Smith College v Massachusetts Com. against <<=23>> Discrimination (1978) 376 Mass 221, 380 NE2d 121, 20 BNA FEP Cas 1655, 18 CCH EPD 8699. Massachusetts Commission Against Discrimination rule on continuing violations, allowing filing of complaint within 6 months of alleged unlawful conduct, is not inconsistent with limitation expressed in ALM GL c 151B @ 5. Rock v Massachusetts Com. against <<=24>> Discrimination (1981) 384 Mass 198, 424 NE2d 244, 41 BNA FEP Cas 1351, 27 CCH EPD 32163. Massachusetts Commission Against Discrimination may issue interrogatories and apply default sanctions pursuant to Rule 11 of its procedural rules. University Hospital, Inc. v Massachusetts Com. against <<=25>> Discrimination (1986) 396 Mass 533, 487 NE2d 506, 40 BNA FEP Cas 225, 43 CCH EPD 37050. Massachusetts Commission Against Discrimination is given authority to adjudicate discrimination claims. <<=26>> Brunson v Wall (1989) 405 Mass 446, 541 NE2d 338. Full commission of Massachusetts Commission Against Discrimination is required, on appeal, to review record which was before hearing commissioner, and should accept facts found by hearing commissioner unless they are unsupported by substantial evidence. <<=27>> Lynn Teachers Union, Local 1037 v Massachusetts Com. Against Discrimination (1990) 406 Mass 515, 549 NE2d 97. Person who feels that his or her rights under ALM GL c 151B @ 4(1) have been violated may file complaint with Massachusetts Commission Against Discrimination which has power to hold hearings and render judgments regarding claims of unlawful discrimination. <<=28>> Lynn Teachers Union, Local 1037 v Massachusetts Com. Against Discrimination (1990) 406 Mass 515, 549 NE2d 97. Where plaintiff lied to employer at time of interview about her intention of having more children, discharge of plaintiff two months later when plaintiff told employer she was pregnant was lawful. <<=29>> Lysak v Seiler Corp. (1993) 415 Mass 625, 614 NE2d 991, 62 BNA FEP Cas 88, summary op at (Mass) 21 M.L.W. 2934. Evidence of plaintiff's emotional distress was admissible on issue of damages but not on issue of liability for unlawful discrimination in employment because of sex. <<=30>> Lysak v Seiler Corp. (1993) 415 Mass 625, 614 NE2d 991, 62 BNA FEP Cas 88, summary op at (Mass) 21 M.L.W. 2934. Proceedings of Commission Against Discrimination are judicial in nature; party subject to adjudicatory proceedings at Commission will have full and fair opportunity to litigate constitutional concerns, such as pre-emption and Commerce Clause Claims, in those proceedings, as well as in courts of Commonwealth in reviewing any decision of Commission, such that federal court will not enjoin adjudicatory proceedings of Commission. Brotherhood of Locomotive Engineers v Commonwealth of Massachusetts Com. against <<=31>> Discrimination (1988, DC Mass) 695 F Supp 1321, 48 BNA FEP Cas 25, 47 CCH EPD 38366. Subsections 6 and 7 of ALM GL c 151B @ 3 provide ample authority for issuance of subpoenas in connection with investigation. 1968-1969 Op AG 95. Chairman of Massachusetts Commission Against Discrimination, in acting on complaints pursuant to said commissioner's duties under ALM GL c 151B, may consider residency requirements of Commonwealth's public housing units as unconstitutionally discriminatory. 1971-1972 Op AG 30. LEVEL 1 - 9 OF 22 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS Copyright (c) 1995, Lawyers Cooperative Publishing *** THIS SECTION IS CURRENT THROUGH CHAPTER 167, APPROVED 10/26/94 *** PART I. ADMINISTRATION OF THE GOVERNMENT TITLE XXI. LABOR AND INDUSTRIES CHAPTER 151B. Unlawful Discrimination Because of Race, Color, Religious Creed, National Origin, Ancestry or Sex Mass. Ann. Laws ch. 151B, @ 4 (1995) @ 4. Unlawful Practices; Certain Records to be Kept; Employer, etc., Not Required to Grant Preferential Treatment to Any Individual or Group. It shall be an unlawful practice: 1. For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, or ancestry of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. 1A. It shall be unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate, or forego the practice of, his creed or religion as required by that creed or religion including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or holy day and the employer shall make reasonable accommodation to the religious needs of such individual. No individual who has given notice as hereinafter provided shall be required to remain at his place of employment during any day or days or portion thereof that, as a requirement of his religion, he observes as his sabbath or other holy day, including a reasonable time prior and subsequent thereto for travel between his place of employment and his home, provided, however, that any employee intending to be absent from work when so required to his or her creed or religion shall notify his or her employer not less than ten days in advance of each absence, and that any such absence from work shall, wherever practicable in the judgment of the employer, be made up by an equivalent amount of time at some other mutually convenient time. Nothing under this subsection shall be deemed to require an employer to compensate an employee for such absence. "Reasonable Accommodation", as used in this subsection shall mean such accommodation to an employee's or prospective employee's religious observance or practice as shall not cause undue hardship in the conduct of the employer's business. The employee shall have the burden of proof as to the required practice of his creed or religion. Undue hardship, as used herein, shall include the inability of an employer to provide services which are required by and in compliance with all federal and state laws, including regulations or tariffs promulgated or required by any regulatory agency having jurisdiction over such services or where the health or safety of the public would be unduly compromised by the absence of such employee or employees, or where the employee's presence is indispensable to the orderly transaction of business and his or her work cannot be performed by another employee of substantially similar qualifications during the period of absence, or where the employee's presence is needed to alleviate an emergency situation. The employer shall have the burden of proof to show undue hardship. 1B. For an employer in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. 1C. For the commonwealth or any of its political subdivisions, by itself or its agent, because of the age of any individual, to refuse to hire or employ or to bar or discharge from employment such individual in compensation or in terms, conditions or privileges of employment unless pursuant to any other general or special law. 2. For a labor organization, because of the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age, or ancestry of any individual, or because of the handicap of any person alleging to be a qualified handicapped person, to exclude from full membership rights or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer unless based upon a bona fide occupational qualification. 3. For any employer or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry or record in connection with employment, which expresses, directly or indirectly, any limitation, specification or discrimination as to the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, age or ancestry, or the handicap of a qualified handicapped person or any intent to make any such limitation, specification or discrimination, or to discriminate in any way on the ground of race, color, religious creed, national origin, sex, age, ancestry or the handicap of a qualified handicapped person, unless based upon a bona fide occupational qualification. 3A. For any person engaged in the insurance or bonding business, or his agent, to make any inquiry or record of any person seeking a bond or surety bond conditioned upon faithful performance of his duties or to use any form of application in connection with the furnishing of such bond, which seeks information relative to the race, color, religious creed, national origin, sex, which shall not include persons whose involves minor children as the sex object, or ancestry of the person to be bonded. 3B. For any person whose business includes granting mortgage loans or engaging in residential real estate-related transactions to discriminate against any person in the granting of any mortgage loan or in making available such a transaction, or in the terms or conditions of such a loan or transaction, because of race, color, religion, sex, which shall not include persons whose involves minor children as the sex object, children, national origin, ancestry, age or handicap. Such transactions shall include, but not be limited to: (1) the making or purchasing of loans or the provision of other financial assistance for purchasing, constructing, improving, repairing, or maintaining a dwelling; or the making or purchasing of loans or the provision of other financial assistance secured by residential real estate; or (2) the selling, brokering, or appraising of residential real estate. In the case of age, the following shall not be an unlawful practice: (1) an inquiry of age for the purpose of determining a pertinent element of credit worthiness; (2) the use of an empirically derived credit system which considers age; provided, however, that such system is based on demonstrably and statistically sound data; and provided, further, that such system doe