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[CHAP. 479]

AN ACT CHANGING THE NAME OF THE "MASSACHUSETTS FAIR EMPLOYMENT PRACTICE COMMISSION" TO THE "MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION" AND RELATIVE TO ITS POWERS AND DUTIES

Be it enacted, etc., as follows:

SECTION 1. Section 17 of chapter 6 of the General Laws, as most recently amended by section 1 of chapter 637 of the acts of 1948, is hereby further amended by striking out, in lines 12 and 13, the words "Massachusetts fair employment practice commission" and inserting in place thereof the words:-Massachusetts commission against discrimination.

SECTION 2. Section 56 of said chapter 6, as amended, is hereby further amended by striking out, in lines 2 and 3, as appearing in section 3 of chapter 368 of the acts of 1946, the words "Massachusetts Fair Employment Practice Commission" and inserting in place thereof the words:-Massachusetts Commission Against Discrimination,—and by striking out the caption immediately preceding said section 56 and inserting in place thereof the following:-Massachusetts Commission Against Discrimination.

SECTION 3. Chapter 272 of the General Laws is hereby amended by striking out section 98, as amended by chapter 138 of the acts of 1934, and inserting in place thereof the following:-Section 98. Whoever makes any distinction, discrimination or restriction on account of religion, color or race, except for good cause applicable alike to all persons of every religion, color and race, relative to the admission of any person to, or his treatment in, any place of public accommodation, resort or amusement, as defined in section ninety-two A of chapter two hundred and seventy-two, or whoever aids or incites such distinction, discrimination or restriction, shall be punished by a fine of not more than three hundred dollars or by imprisonment for not more than one year, or both, and shall forfeit to any person aggrieved thereby not less than one hundred nor more than five hundred dollars; but such person so aggrieved shall not recover against more than one person by reason of any one act of distinction, discrimination or restriction. All persons shall have the right to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. This right is recognized and declared to be a civil right.

SECTION 4. Chapter 151B of the General Laws is hereby amended by striking out section 5, as appearing in section 4 of chapter 368 of the acts of 1946, and inserting in place thereof the following:-Section 5. Any person claiming to be aggrieved by an alleged unlawful employment practice or alleged violation of cause (e) of section twenty-six FF of chapter one hundred and twenty-one or sections ninety-two A and ninety-eight of chapter two hundred and seventytwo may, by himself or his attorney, make, sign and file with the commission a verified complaint in writing which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful employment practice complained of or the violation of said clause (e) of said section twenty-six FF or said sections ninety-two A and ninetyeight and which shall set forth the particulars thereof and contain such other information as may be required by the commission. The attorney general may, in like manner, make, sign and file such complaint. The commission, whenever it has reason to believe that any person has been or is engaging in an unlawful employment practice or violation of said clause (e) of said section twenty-six FF or said sections ninety-two A and ninety-eight, may issue such a complaint. Any employer whose employees, or some of them, refuse or threaten to refuse to co-operate with the provisions of this chapter, may file with the commission a verified complaint asking for assistance by conciliation or other remedial action. After the filing of any complaint, the chairman of the commission shall designate one of the commissioners to make, with the assistance of the commission's staff, prompt investigation in connection therewith; and if such commissioner shall determine after such investigation that probable cause exists for crediting the allegations of the complaint, he shall immediately endeavor to eliminate the unlawful employment practice complained of or the violation of said clause (e) of said section twenty-six FF or said sections ninety-two A and ninety-eight by conference, conciliation and persuasion. The members of the commission and its staff shall not disclose what has occurred in the course of such endeavors, provided that the commission may publish the facts in the case of any complaint

which has been dismissed, and the terms of conciliation when the complaint has been so disposed of. In case of failure so to eliminate such practice or violation, or in advance thereof if in his judgment circumstances so warrant, he may cause to be issued and served in the name of the commission, a written notice, together with a copy of such complaint, as the same may have been amended, requiring the person, employer, labor organization or employment agency named in such complaint, hereinafter referred to as respondent, to answer the charges of such complaint at a hearing before the commission, at a time and place to be specified in such notice. The place of any such hearing shall be the office of the commission or such other place as may be designated by it. The case in support of the complaint shall be presented before the commission by one of its attorneys or agents, and the commissioner who shall have previously made the investigation and caused the notice to be issued shall not participate in the hearing except as a witness, nor shall he participate in the deliberations of the commission in such case; and the aforesaid endeavors at conciliation shall not be received in evidence. The respondent may file a written verified answer to the complaint and appear at such hearing in person or otherwise, with or without counsel, and submit testimony. In the discretion of the commission, the complainant may be allowed to intervene and present testimony in person or by counsel. The commission or the complainant shall have the power reasonably and fairly to amend any complaint, and the respondent shall have like power to amend his answer. The commission shall not be bound by the strict rules of evidence prevailing in courts of law or equity. The testimony taken at the hearing shall be under oath and be transcribed at the request of any party. If, upon all the evidence at the hearing the commission shall find that a respondent has engaged in any unlawful employment practice as defined in section four or violation of said clause (e) of said section twenty-six FF or said sections ninety-two A and ninety-eight, the commission 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 employment practice or violation of said clause (e) of said section twenty-six FF or said sections ninety-two A and ninety-eight and to take such affirmative action, including (but not limited to) hiring, reinstatement or upgrading of employees, with or without back pay, or restoration to membership in any respondent labor organization, as in the judgment of the commission, will effectuate the purposes of this chapter or of said clause (e) of said section twentysix FF or said sections ninety-two A and ninety-eight, and including a requirement for report of the manner of compliance. If, upon all the evidence, the commission shall find that a respondent has not engaged in any such unlawful employment practice or violation of said clause (e) of said section twenty-six FF or said sections ninety-two A and ninety-eight, the commission shall state its findings of fact and shall issue and cause to be served on the complainant an order dismissing the said complaint as to such respondent. A copy of its order shall be delivered in all cases to the attorney general and such other public officers as the commission deems proper. The commission shall establish rules of practice to govern, expedite and effectuate the foregoing procedure and is own actions thereunder. Any compaint filed pursuant to this section must be so filed within six months after the alleged act of discrimination. The institution of proceedings under this section, or an order thereunder, shall not be a bar to proceedings under said sections ninety-two A and ninety-eight, nor shall the institution of proceedings under said sections ninety-two A and ninety-eight, or a judgment thereunder, be a bar to proceedings under this section.

SECTION 5. Clause (e) 26FF of chapter 121 of the General Laws, as amended by chapter 51 of the acts of 1948, is hereby further amended by inserting after the word "discrimination", in lines 2, 8 and 9, and 12, in each instance, the words—or segregation, so as to read as follows:-(e) There shall be no discrimination or segregation; provided, that if the number of qualified applicants for dwelling accommodations exceeds the dwelling units available, preference shall be given to inhabitants of the city or town in which the project is located, and to the families who occupied the dwellings eliminated by demolition, condemnation and effective closing as part of the project as far as is reasonably practicable without discrimination or segregation against persons living in other sub-standard areas within the same city or town. For all purposes of this chapter, no person shall, because of race, color, creed or religion, be subjected to any discrimination or segregation.

SECTION 6. Nothing in section one or two shall be deemed to affect the terms, powers and duties of any of the present members or employees of the Massachusetts fair employment practice commission.

21-544-64-pt. 3-4

SECTION 7. The provisions of this act are severable, and if any provision, sentence, clause, section or part thereof shall be held illegal, invalid, unconstitutional or inapplicable to any person or circumstance, such illegality, invalidity, unconstitutionality or inapplicability shall not affect or impair any of the remaining provisions, sentences, clauses, sections or parts of the act or their application to other persons and circumstances. It is hereby declared to be the legislative intent that this act would have been adopted if such illegal, invalid or unconstitutional provision, sentence, clause, section or part had not been included therein, and if the person or circumstances to which this act or any part thereof is inapplicable had been specifically exempted therefrom.

Approved May 23, 1950.

[CHAP. 697]

AN ACT RELATIVE TO DISCRIMINATION AGAINST EMPLOYEES AND PERSONS SEEKING EMPLOYMENT BETWEEN FORTY-FIVE AND SIXTY-FIVE YEARS OF AGE

Be it enacted, etc., as follows:

SECTION 1. Subsection 5 of section 1 of chapter 151B of the General Laws, as appearing in section 4 of chapter 368 of the acts of 1946, is hereby amended by inserting after the word "thereof", in line 7, the words:-in all respects except with respect to age.

SECTION 2. Said section 1 of said chapter 151B, as so appearing, is hereby further amended by adding at the end thereof the following subsection :—

8. The term "age" unless a different meaning clearly appears from the context, includes any person between the ages of forty-five and sixty-five.

SECTION 3. Subsection 6 of section 3 of said chapter 151B, as so appearing, is hereby amended by inserting after the word "origin", in line 3, the word :—, age. SECTION 4. Subsection 8 of said section 3 of said chapter 151B, as so appearing, is hereby amended by inserting after the word "origin", in line 7, the word :—, age.

SECTION 5. Subsection 9 of said section 3 of said chapter 151B, as so appearing, is hereby amended by inserting after the word "origin", in line 4, the word:-, age.

SECTION 6. Subsection 1 of section 4 of said chapter 151B, as so appearing, is hereby amended by inserting after the word "origin", in line 2, the word :—, age. SECTION 7. Subsection 2 of said section 4 of said chapter 151B, as so appearing, is hereby amended by inserting after the word "origin", in line 2, the word :-, age.

SECTION 8. Subsection 3 of said section 4 of said chapter 151B, as so appearing, is hereby amended by inserting after the word "origin", in line 7 and in line 10, in each instance, the word :—, age.

SECTION 9. Section 9 of said chapter 151B, as so appearing, is hereby amended by inserting after the word “ancestry”, in line 8, the words :-, and nothing contained in this chapter shall be deemed to repeal sections twenty-four A to twentyfour J, inclusive, of chapter one hundred and forty-nine or any other law of the commonwealth relating to discrimination because of age, so as to read as follows:-Section 9. The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof, and any law inconsistent with any provision hereof shall not apply, but nothing contained in this chapter shall be deemed to repeal section ninety-eight of chapter two hundred and seventytwo or any other law of this commonwealth relating to discrimination because of race, color, religious creed, national origin, or ancestry, and nothing contained in this chapter shall be deemed to repeal sections twenty-four A to twenty-four J, inclusive, of chapter one hundred and forty-nine or any other law of the commonwealth relating to discrimination because of age; but, as to acts declared unlawful by section four, the precedure provided in this chapter shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned. If such individual institutes any action based on such grievance without resorting to the procedure provided in this chapter, he may not subsequently resort to the procedure herein.

Approved August 1, 1950.

Mrs. MILDRED H. MAHONEY,

THE COMMONWEALTH OF MASSACHUSETTS,
DEPARTMENT OF THE ATTORNEY GENERAL,
Boston, November 24, 1959.

Chairman, Commission Against Discrimination, Boston, Mass. DEAR MRS. MAHONEY: You indicate that the Commission Against Discrimination has before it affidavits filed against two real estate agencies alleging discrimination because of color. One affidavit concerns the rental of an apartment in a two-family house owned and managed by a real estate agency which manages and owns a large number of such properties throughout the Commonwealth. Because, however, the house in question is not contiguous to eight other rental units controlled by the respondent it is not covered by the recently enacted "fair housing law" (C 239 of the acts of 1959).

The second affidavit was filed by the owner of a single-family dwelling. He alleges that a real estate agency refused to show his house to prospective Negro buyers.

You further indicate that your commission anticipates that it will continue to receive affidavits alleging discriminatory practices by real estate agencies regarding properties not covered by the housing amendment to the fair housing practice law.

You request, therefore, my opinion on the following question:

"Would the Commission in accepting jurisdiction under the Public Accommodations Law of complaints filed against real estate agencies which allege discrimination because of religion, color, or race be abusing its discretion or acting arbitrarily or capriciously or otherwise not in accordance with law?"

Under G.L. C. 151B, as amended, the Commission Against Discrimination is rested with jurisdiction of the "public accommodations law" so called. That law is found in G.L. C. 272, ss. 92A and 98.

Section 92A reads:

"Places of Accommodation or Resort Not to Discriminate Because of Sect, Creed, Class, Race, Color, or Nationality

"No owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement shall, directly or indirectly, by himself or another, publish, issue, circulate, distribute or display, or cause to be published, issued, circulated, distributed or displayed, in any way, any advertisement, circular, folder, book, pamphlet, written, or painted or printed notice or sign, of any kind or description, intended to discriminate against or actually discriminating against persons of any religious sect, creed, class, race, color, denomination or nationality, in the full enjoyment of the accommodations, advantages, facilities or privileges offered to the general public by such places of public accommodation, resort or amusement; provided, that nothing herein contained shall be construed to prohibit the mailing to any person of a private communication in writing, in response to his specific written inquiry.

"A place of public accommodation, resort or amusement within the meaning hereof shall be defined as and shall be deemed to include any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public and, without limiting the generality of this definition, whether or not it be (1) an inn, tavern, hotel, shelter, roadhouse, motel, trailer camp or resort for transient or permanent guests or patrons seeking housing or lodging, food, drink, entertainment, health, recreation or rest; (2) a carrier, conveyance or elevator for the transportation of persons, whether operated on land, water or in the air, and the stations, terminals and facilities appurtenant thereto; (3) a gas station, garage, retail store or establishment, including those dispensing personal services; (4) a restaurant, bar or eating place, where food, beverages, confections or their derivatives are sold for consumption on or off the premises; (5) a rest room, barber shop, beauty parlor, bathhouse, seashore facilities or swimming pool; (6) a boardwalk or other public highway; (7) an auditorium, theatre, music hall, meeting place or hall, including the common halls of buildings; (8) a place of public amusement, recreation, sport, exercise or entertainment; (9) a public library, museum or planetarium; or (10) a hospital, dispensary or clinic operating for profit; provided, however, that no place shall be deemed to be a place of public accommodation resort or amusement which is owned or operated by a club or institution whose products or facilities or services are available only to its members and their guests nor by any religious, racial or denominational institution or organization, nor by any organization operated for charitable or educational purposes.

"Any person who shall violate any provision of this section, or who shall aid in or incite, cause or bring about, in whole or in part, such a violation shall be punished by a fine of not more than one hundred dollars, or by imprisonment for not more than thirty days or both." (1933, 117; 1953, 437, appvd. June 2, 1953; effective 90 days thereafter.) [Emphasis supplied.]

Section 98 reads:

"Religion, Color or Race Discrimination Penalized

"Whomever makes any distinction, discrimination or restriction on account of religion, color or race, except for good cause applicable alike to all persons of every religion, color and race, relative to the admission of any person to, or his treatement in, any place of public accommodation, resort or amusement, as defined in section ninety-two A of chapter two hundred and seventy-two, or whoever aids or incites such distinction, discrimination or restriction, shall be punished by a fine of not more than three hundred dollars or by imprisonment for not more than one year, or both, and shall forfeit to any person aggrieved thereby not less than one hundred nor more than five hundred dollars but such person so aggrieved shall not recover against more than one person by reason of any one act of distinction, discrimination or restriction. All persons shall have the right to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. This right is recognized and declared to be a civil right." Although to date 24 States have enacted public accommodations law similar in their scope to the Massachusetts laws, inquiry and research have uncovered no decided court cases bearing on the issue herein posed. However, the Connecticut Commission on Civil Rights, on December 15, 1955, ruled that under its interpretation of the Connecticut public accommodations statute a real estate agent is covered under the definition of a place of public accommodation as “an establishment which caters or offers its services or facilities or goods to the general public" within the meaning of that law.

It is significant that in the 4 years that have elapsed since the promulgation of the Connecticut ruling there has been no challenge to it in that State.

Obviously, a real estate agency is a "*** place which is open to and accepts or solicits the patronage of the general public ***," and it may well be that a real estate agency is an "establishment" in the business of "dispensing personal services." Finally, a real estate agency does not come within the clearly defined exceptions of a private club or a religious, racial, denominational, charitable, or educational use set out in the Massachusetts statute.

In view of the wording of our public accommodations statute, both standing alone and in the context of the broad and long-standing public policy established by the Massachusetts General Court to prohibit racial, religious and ethnic national discrimination, it would seem, and I so rule, that it is a violation for a real estate agency to refuse to offer its services to any person or to refuse to accommodate any person as a client because of his race, creed, or color. Very truly yours,

EDWARD J. MCCORMACK, Jr.,

Attorney General.

UNITED CHURCH OF CHRIST,

COUNCIL FOR CHRISTIAN SOCIAL ACTION,
New York, N.Y., August 13, 1963.

Hon. WARREN G. MAGNUSON,
Committee on Commerce,

U.S. Senate, Washington, D.C.

DEAR SENATOR MAGNUSON: I have just returned to the office after being away for a week and found it was impossible to file a statement with your committee before August 7. However, I am filing a statement at this late date with the hope that it is still possible to have it entered in the record.

Thank you for your courtesy.

Cordially,

RAY GIBBONS.

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