Employers paid out a record $61.6 million through the EEOC in 2021 for allegations regarding workplace harassment.
While this chapter is devoted primarily to sexual harassment, employers should be aware of, and take steps to prevent, harassment based on:
Sexual harassment is a form of sex discrimination that violates both Title VII and Massachusetts law. Both laws prohibit two types of sexual harassment:
Quid pro quo harassment occurs when a supervisor promises benefits or threatens reprisals to an employee based on the employee’s willingness to provide sexual favors. An obvious version of this claim is when a supervisor tells a subordinate that he will get a promotion if he sleeps with the supervisor. However, the facts need not be so blatant to give rise to a claim. Oftentimes, the claim arises when employees in a reporting relationship engage in sexual conduct. Under these circumstances, a quid pro quo claim may be implicit based on the power dynamic between the parties.
To prove quid pro quo harassment, an employee must establish all the following:
A hostile work environment claim exists when an employer subjects an employee to conduct of a sexual nature that is sufficiently severe and pervasive to affect the employee’s ability to engage in the workplace.
To prove harassment, the employee must establish the following:
To establish a claim, the plaintiff must show that the sexual harassment was both objectively and subjectively offensive. In other words, the environment must be one that a reasonable person would find hostile or abusive and one that the employee, in fact, perceived as hostile and abusive. Courts determine whether an environment is sufficiently hostile or abusive by considering the following factors:
In quid pro quo cases, employers are strictly liable when harassment committed by supervisory personnel results in a tangible employment action, which is defined as “a significant change in employment status.” Supervisory personnel are those who have the authority to grant or deny tangible employment benefits (such as promotions, demotions or transfers). Courts traditionally hold that supervisors who have the authority to make employment decisions are legally acting on their employer’s behalf, even if the employer does not know of the unlawful conduct.
In hostile work environment cases, employers may be liable for the hostile environments created by co-workers (who have no supervisory authority) and third parties (such as vendors or customers) if the employer knew or should have known about the harassment and failed to take prompt, corrective action.
An employer may defend a sexual harassment claim by establishing that employer both:
Massachusetts law requires that employers adopt policies against sexual harassment. An employer must provide to all employees annually a copy of its policy against sexual harassment. The employer must also give new employees copies of the policy at the time of hire.
The sexual harassment policy should include:
An employer should:
The Supreme Court has upheld discrimination claims in which an employee is harassed by a supervisor or co-worker of the same sex. The Court stressed that the critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not.
On March 3, 2022, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was signed into law. The law was designed to provide victims of workplace sexual misconduct with the right to seek justice in a court room. Traditionally, such matters were addressed through arbitration.
The act amends the Federal Arbitration Act (FAA) to include a new section, which states, in part:
[A]t the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.
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