Workplace harassment — Massachusetts

Employers paid out a record $61.6 million through the EEOC in 2021 for allegations regarding workplace harassment.

While this topic is devoted primarily to sexual harassment, employers should be aware of, and take steps to prevent, harassment based on:

• race
• age
• sexual orientation
• transgender status
• ancestry
• other protected classes.

Sexual harassment

Sexual harassment is a form of sex discrimination that violates both Title VII and Massachusetts law. Both laws prohibit two types of sexual harassment:

1. quid pro quo harassment
2. hostile work environment harassment.

Quid pro quo 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:

• membership in a protected class (such as gender)
• unwelcome sexual advances
• adverse employment action
• causal connection (that the sexual advance was made because of the employee’s sex and that the employee’s reaction to the sexual advance significantly impacted the employee’s employment).

Hostile work environment

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:

• membership in a protected class (such as gender)
• unwanted conduct of a sexual nature
• that is sufficiently severe or pervasive to alter the terms and conditions of employment.

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:

• frequency of the conduct
• whether the conduct is physically threatening or humiliating or consists merely of an offensive utterance
• whether the environment unreasonably interferes with the employee’s work performance.

Employer responsibility

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:

• exercised reasonable care to prevent and promptly correct any sexually harassing behavior
• employee failed to take advantage of any preventive or corrective measures.

Harassment policies

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:

• a statement that sexual harassment in the workplace is unlawful
• a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of a complaint for sexual harassment
• a description and examples of sexual harassment
• a statement of the range of consequences for employees who are found to have committed sexual harassment
• a description of the process for filing internal complaints about sexual harassment and the work addresses and telephone numbers of the person or persons to whom complaints should be made
• the identity of the appropriate state and federal employment discrimination enforcement agencies (that is, the EEOC and MCAD) and directions as to how to contact the agencies.

Best practices

An employer should:

• Implement and distribute anti-harassment policies - Not only is this a requirement of Massachusetts law, but it also assists an employer in its defense of a claim. When an employer has a comprehensive harassment policy, it demonstrates that the employer exercises reasonable care to prevent sexually harassing conduct. The employer should ensure that the policy prohibits all forms of harassment, not only sexual harassment.
• Educate employees about harassment issues - The employer should educate its employees on the types of conduct that prohibited by its policy. An employer may want to conduct an anti-harassment seminar as part of any new hire training program. It should also train supervisors and managers to recognize problems and handle complaints.
• Develop an effective reporting/grievance procedure - Often, an employer’s potential liability greatly increases when it fails to provide employees with a reasonable method to report harassment.
  • Example
    The Supreme Court found that an employer’s policy did not protect it from liability, because the policy required the employee to report the harassment to her direct supervisor, who was the individual allegedly harassing her. Employers should ensure that their policies identify at least two different avenues through which an employee may report a complaint.
• Employers also should consider supplying their employees with a toll-free hotline to report complaints.
• Conduct prompt, thorough investigations into complaints - The employer should not wait for an employee to formally complain of harassment when it believes that the employee may have a claim. Courts hold employers directly liable for harassment when they know or reasonably should know about the harassment and fail to stop it. Furthermore, the employer should not promise an employee that it will keep the complaint confidential. Total confidentiality is impossible when the employer conducts a thorough investigation by interviewing witnesses. The sexual harassment policy should only promise that complaints will be kept confidential “to the extent possible.” (See Workplace investigations.)
• Take appropriate action - Following an investigation into a harassment complaint, the employer should determine appropriate corrective action and should discipline the harasser if appropriate. The employer should meet with the complaining employee to explain the outcome of the investigation and what steps, if any, have been taken to resolve the complaint. Finally, the employer should review the sexual harassment policy with all parties involved in the complaint.

Same-sex harassment

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.

Taking claims to court

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.

What employers need to know

1. ​The act gives employees the option to invalidate arbitration agreements and class or collective action waivers with respect to sexual assault and sexual harassment claims. This means employees may choose to either arbitrate these claims or pursue them in court regardless of any contractual agreements with their employers.
2. The act applies to all claims that arise or accrue after March 3, 2022, regardless of the date of the agreement at issue. The act, however, does not affect claims that arose or accrued before March 3, 202
3. The act does not affect otherwise valid arbitration agreements for claims that are not related sexual assault and sexual harassment.
4. Future litigation is anticipated over the scope and interpretation of this law.