Calendar | Member Directory | Find Us | Contact Us | JOIN US

SEXUAL HARASSMENT (STATE AND FEDERAL)

---

IMPORTANT NOTICE

This portion of the Neponset Valley Chamber website contains information on various employment-related topics. The materials included on each topic do not necessarily comprehensively cover the entire topic. Each section contains articles or memoranda that NVCC H.R. Council members who are employment law attorneys or human resources consultants have written in relation to the various topics. The most recently provided information under each topic will appear first. The information provided in these articles/memoranda was accurate at the time it was first issued. However, you should be aware that employment law is frequently subject to change. Thus, information on this website may not still be completely accurate at the time you read it. The information here should provide helpful guidance, but is not intended to constitute legal advice applicable to any particular situation. You should also be aware that the Neponset Valley Chamber of Commerce has provided this information as a service to our members. However, the information provided is not advice provided by the Chamber of Commerce, nor would the Chamber of Commerce be in any way legally responsible for any inaccuracies. Any opinions expressed are strictly those of the authors.

---

• NEW COURT DECISION ON SEXUAL HARASSMENT EMPHASIZES THE IMPORTANCE OF EMPLOYER COMPLIANCE WITH LEGALLY REQUIRED SEXUALLY HARASSMENT PROCEDURES
• GUIDELINES ON SEXUAL HARASSMENT ISSUED BY THE MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION
• A WRITTEN SEXUAL HARASSMENT POLICY MUST BE DISTRIBUTED BY MOST MASSACHUSETTS EMPLOYERS ONCE A YEAR
• MODEL SEXUAL HARRASSMENT POLICY

By Attorney Leslie Lockard
The Law Office of Leslie Lockard, PC
1500 Providence Highway, Suite 33
Norwood, MA 02062
Phone (781)551-0800
Fax (781)551-0801
Llockard@leslielockard.com
www.leslielockard.com

Our Massachusetts Court of Appeals recently issued a decision which gave a potentially broader interpretation to the term “sexual harassment” than many might expect. In Ritchie v. Department of State Police, the court overturned a lower court dismissal of a case in which a woman claimed she had been subjected to a sexually harassing work environment by observing a workplace romance between her supervisor and a co-worker, and being questioned about her objection to the relationship and the alleged favoritism the supervisor showed the co-worker. In deciding that the case should be permitted to go forward to trial, the Appeals Court stated that such conduct could in some circumstances constitute actionable harassment. Thus, a woman may be able to successfully claim sexual harassment even though no harassing conduct was visited upon her directly. In another fairly recent case, the Massachusetts Commission Against Discrimination awarded more than $100,000 each in emotional distress damages to several truck drivers who claimed that a co-worker had made a number of sexually explicit jokes and gestures to them. Both the complainants and the alleged harasser in this case were heterosexual males: there was no sexual desire component in what was characterized by the MCAD as “male horseplay”. This large damage award in a sexual harassment case is not unusual: there have been a number of awards in such cases of several hundred thousand dollars each.

Since the definition of “sexual harassment” can be surprisingly broad, and damage awards in such cases can be very large, employers need to know what to do to protect themselves. Nearly all employers are required to comply with sexual harassment laws. Employers of six or more people are required to comply with Chapter 151B, the state sexual harassment statute. There is also another state sexual harassment statute which applies to employers of fewer than six employees.

WHAT CONSTITUTES UNLAWFUL HARASSMENT?

There are two types of sexual harassment:

Quid Pro Quo: when an employee is asked to submit to sexual advances or sexual conduct in exchange for a workplace benefit such as a promotion, or continued employment, or when an employee is fired or otherwise receives disadvantageous treatment as a result of refusing to submit to such behavior.

Hostile Environment Sexual Harassment: sexual advances, requests for sexual favors or verbal or physical conduct of a sexual nature which has the purpose or effect of unreasonably interfering with a person’s workplace performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.

Among the kinds of conduct which could constitute hostile environment sexual harassment are:

sexual jokes or comments;

discussions of one’s own sexual life;

questioning others about their sexual lives;

displaying sexual cartoons, objects, or pictures;

staring at someone in a sexual way;

brushing against or touching people in a sexual way;

commenting about peoples’ bodies;

making disparaging remarks based on gender (“You’re just a dumb woman”);

persistent requests for dates;

horseplay which includes sexual comments or gestures.

Harassment on the basis of any category protected by discrimination statutes (race, color, national origin, age, religion, homosexuality, pregnancy or disability) also violates the law. Examples of cases of this kind of unlawful workplace harassment are one in which an employer repeatedly referred to one of his employees as “an old bag”, and a case in which an employer repeatedly ridiculed a Muslim employee’s religion, and went so far as to wipe his feet on the employee’s sacred prayer rug.

Many employers may not be aware of some of the following aspects of harassment law:

• Harassment doesn’t necessarily have to be specifically directed at the employee who complains about it to be actionable. For example, it may constitute sexual harassment if an employee overhears comments about women which are offensive to her, and which are upsetting enough to her interfere with her work performance, even though the comments were not directed at her specifically.

• It may still be actionable harassment even if the harasser has absolutely no intent to offend or harass the person who complains of it. Hostile environment sexual harassment is defined as harassment which has the purpose or effect of creating a hostile or intimidating environment. Thus, the person who tells jokes, thinking he is being funny, and having absolutely no intent to harass the person who considers his jokes to be harassment, may still have engaged in actionable harassment.

• Employees do not necessarily have to complain to anyone at their workplace before bringing a claim of harassment. Sometimes employees do not make an internal complaint because they fear being viewed as a complainer or a poor sport. The fact that an employee doesn’t tell the alleged harassers that their conduct is unwelcome, or make a complaint to management, does not necessarily preclude her/him from filing a lawsuit.

• It is an independent violation of discrimination law to retaliate against an employee who makes a good faith complaint of unlawful harassment, or to retaliate against an employee who assists in an investigation of harassment, or provides testimony or other kinds of support to a co-worker who complains of harassment.

• It is also an independent violation of discrimination law to fail to take action if an employee complains of unlawful harassment. An employer by law is required to conduct a prompt, fair and thorough investigation of any harassment complaint and, if the complaint is substantiated, to take prompt, effective remedial action to prevent any further harassment from occurring. Some of the largest judgments in sexual harassment cases have come in cases in which an employee repeatedly complained of unlawful harassment and the employer did nothing about it.

• Both harassers, and responsible company officials who fail to take action when harassment complaints are made to them, can be held individually liable.

There are a number of steps employers should take to protect themselves from expensive harassment litigation. Among them are the following:

• Employers are required to annually circulate to all employees a comprehensive written anti-sexual harassment policy. A copy should also be provided to newly hired employees. A sample policy is available at the Massachusetts Commission Against Discrimination website. Although it is advisable to stick very closely to the MCAD’s sample language, language should be added reflecting that sexually explicit emails, voicemails and other electronic communications are also prohibited. In addition, it would be advisable to include language stating that harassment on the basis of any protected category, such as race, sexual preference, religion, etc. is also prohibited. Employers should retain documentation reflecting that these required notices have been issued.

• It would be advisable to provide training to both supervisors and lower level employees about workplace harassment. A state statute strongly recommends that employers conduct such training. Educating employees as to the types of conduct that are prohibited should also prevent such conduct from occurring. Moreover, providing such training may provide helpful defenses to employers should a harassment claim be brought against the company. Many employment law attorneys will come to your company to conduct workplace sexual harassment training. Such training would also likely provide many more tips for protecting the company from harassment claims than can be described in this article.

• If an instance of potentially actionable workplace harassment comes to your attention, it should be investigated promptly, and prompt effective remedial action should be taken if warranted. Except for minor instances of harassment, it is advisable to consult an employment attorney for advice before investigating a complaint of sexual harassment. There are many complicated factors to take into account. For example, you would want to try to conduct the investigation in such a way as to minimize the creation of evidence or documentation which could actually be damaging to the company if a lawsuit were brought.

Employers who educate themselves and their employees about prohibited workplace harassment greatly reduce their chances of having a judgment of several hundred thousand dollars issued against them.

Employment law attorney Leslie Lockard is a partner with the firm of Gaffin Krattenmaker & O’Connor, P.C. in Boston.