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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 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.
THE COMMONWEALTH OF MASSACHUSETTS,
Boston, November 24, 1959.
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 vested 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 entertaininent; (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.,
UNITED CHURCH OF CHRIST,
New York, N.Y., August 13, 1963.
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,
TESTIMONY IN SUPPORT OF THE CIVIL RIGHTS ACT OF 1963
The Council for Christian Social Action of the United Church of Christ would like to present this testimony in support of the Civil Rights Act of 1963. This instrumentality of the United Church of Christ consists of 27 laymen, women, and clergy, elected by the general synod which represents the 2 million members of the United Church of Christ. Various occupational activities and geographic locations are represented on the council. Its assignment of responsibility is to study and offer recommendations from time to time on issues of social policy. The council does not presume to speak for the United Church of Christ as a whole, nor for its 2 million individual members. On this occasion, however, my testimony will reflect views expressed in official statements adopted by the general synod on several occasions, most recently at its meeting July 4-11, 1963, in Denver, Colo. The general synod is the highest deliberative body and the nationally representative body of the United Church of Christ.
At its meeting in July 1959, the second general synod called upon the churches and their members to pray and work "for the end of racial segregation and discrimination in our communities—in church life, in housing, in employment, in education, in public accommodations and services, and in the exercise of political rights."
The third general synod, at its meeting in Philadelphia in July 1961, issued a pronouncement entitled "A Call to Renewed Responsibility for Racial and Cultural Relations” in which it said, in part, “Nothing less that our total commitment and our determined efforts in behalf of a nonsegregated church in a nonsegregated society will demonstrate the reality of our repentance and our obedience to God.”
The general synod on that occasion called on the members of the United Church of Christ to work for the elimination of segregation and discrimination in every aspect of life and begin with the local churches and church-related institutions. After commending the work of the NAACP, the pronouncement commended “those citizens who have protested by nonviolent demonstrations the wrongness of particular laws and customs.” The statement also commended “the men and women who, with admirable self-discipline and courage, have by peaceful means opposed the inequities of segregation in churches and in places of public accommodation.” In another part of the 1961 statement, the synod said: "The time has come when our Government should question whether it has the constitutional right to make funds available to institutions, projects, or programs that discriminate against persons on the basis of race or color.”
The preceding quotations demonstrate that at its meetings in 1959 and 1961, the general synod advocated many of the policies which are now being proposed in the Civil Rights Act of 1963. At its meeting on July 4-11, 1963, the fourth general synod called upon its members to advocate, demonstrate, and involve themselves in support of the principles of the proposed Civil Rights Act of 1963”. and “to urge their Senators and Representatives to support such legislation on a nonpartisan basis in this session of Congress” and it also instructed “the Council for Christian Social Action to present testimony in support of civil rights * * * legislation before committees of Congress.”
To demonstrate that they are sincere in their support of civil rights for all, the delegates to the fourth general synod gave its support to the following resolution :
"General synod declares its policy to be to contribute funds only to institutions and churches which, as of July 1, 1964, have a policy of openness without respect to race, national background, or ethnic origin, and further urges the instrumentalities, conferences, and churches to adopt and pursue such a policy in respect to contributions."
WHY THE CIVIL RIGHTS ACT OF 1963 SHOULD BE PASSED
The moral position in regard to discrimination based on race, creed, or color, needs no elaboration. Anyone who takes seriously the principles underlying our Judeo-Christian heritage must admit that discrimination against the members of any group whom God has created is a sin against God and a corruption of whatever religious faith we profess. The very inconsistency of racial discrimination with our religious heritage is clearly demonstrated by the fact that as soon as I said I was representing a religious organization, everyone knew what position I would take regarding the civil rights legislation which is the subject of this hearing. It would be inconceivable for a church which calls itself the United
Church of Christ to take any other position and still claim it has a right to keep the name under which it is organized. The same can be said for any of the churches or synagogues which profess a belief in the fatherhood of God and the brotherhood of man.
Just as such discrimination is inconsistent with our religious beliefs, it is also contrary to the American principle of equality of opportunity and the belief in the dignity and integrity of the individual. If we take seriously these principles which have been so characteristic of America, we cannot defend acts of discrimination which would make these principles a colossal mockery. We must not permit the image of America as the land of equality and justic to be destroyed by those who defend their prejudices in order to protect what they believe to be their interests.
That such discrimination weakens the cause of America in its struggle with communism is clear. Dean Rusk has stated: “The biggest single burden we carry on our backs in our foreign relations in the 1960's is the problem of racial discrimination here at home.” Anyone who fails to see what acts of discrimination are doing to our relations with the uncommitted nations has simply not been paying attention to what is going on in the world; and anyone who does understand what these acts are doing and continues to defend them, is placing his personal prejudices ahead of the Nation's interest. In other words, those who continue practices which deny to any individual or group equal opportunities in access to public accommodations, in education, employment, political participation, housing, and the administration of justice, are working against the interests of the United States.
Such action is also wrong because it is contrary to the principles of common decency and justice. By purely ethical standards-regardless of whether or not one is committed to principles of national loyalty or religious faith—to deny a person or group equal opportunities in any of the above-mentioned areas because of race, color, creed, or national origin is unjust and indecent. No further reason for bringing discrimination to an end is necessary.
Many persons may say that racial discrimination is wrong, but that it must be eliminated by friendly persuasion, by education, but not by law. "You can't change attitudes by law” is the statement one often hears to defend the status quo. This is only a half truth. The law changes behavior, which in turn usually changes attitudes. Discrimination in public accommodations in the city of Washington, D.C., is race and unexpected, whereas a decade ago it was accepted as the standard and normal pattern of society. After 1953, when the Supreme Court enforced the 1873 Legislative Assembly Act forbidding discrimination in restaurants (District of Columbia v. John R. Thompson, Inc., 346 U.S. 100), discrimination in restaurants ended with full acceptance by restaurant owners and public alike. In 1956, the District Court of Appeals enforced the 1869 Washington ordinance prohibiting social discrimination in places of public amusement. Central Amusement v. District of Columbia (121 A. 2d 865 (D.C. App. 1956)). The result was that all places of public amusement were opened without disorder. This was done without it being necessary for a single owner or manager of any restaurant or amusement enterprise to be prosecuted under the District's nondiscrimination laws.
Another reason for the elimination of discrimination by law is that many proprietors and employers are people of good will who feel compelled to discriminate, not by law but by custom. Many proprietors of places of public accommodation would cease discrimination if their competitors would serve all persons regardless of race. Those who say laws are bad because they compel persons to conform ignore the fact that, in the absence of law, it is custom which demands conformity. In such a situation as this, the law not only increases the freedom of those discriminated against, but also gives the proprietor the freedom to serve all, which custom had made extremely difficult.
A third reason is closely related to the second ; namely, that since most laws have the effect of restricting one person's freedom by increasing the freedom of another, we must see the function of law as that of selecting priorities. To say that laws against discrimination are bad because they restrict the freedom of choice of the proprietor, is to ignore the fact that such laws greatly increase the freedom of choice of the Negro who wants a place to eat, a place to sleep, a place to work, and a right to vote. No conscientious person who has seen a colored parent explain to this child what it means to be a Negro in America could defend discrimination in any form or under any circumstances. In other words, the quickest way for anyone to appreciate the necessity of law in this field is to put