Sexual Harassment In The Workplace Guidelines

October 2, 2002

The Massachusetts Commission Against Discrimination has the authority “[t]o adopt, promulgate, amend, and rescind rules and regulations suitable to carry out the provisions of this chapter, and the policies and practice of the commission in connection therewith” under the provisions of Mass. Gen. L., ch. 151B, §3. It has issued this “guideline” which is its interpretation of the issue of sexual harassment in the workplace. While it does not carry the force of law, the text (not the endnotes) is the enforcement “attitude” of the Commission. It is important for those affected by these questions to understand the Commission's position in these matters.

I. INTRODUCTION 1

Massachusetts Law prohibits sex discrimination in the workplace.

Sexual harassment is a form of sex discrimination. Sexual harassment is also prohibited in places of public accommodation, educational facilities and housing.

These guidelines address sexual harassment in the workplace only.

The standards governing the prohibition of sex discrimination and sexual harassment in the workplace are set forth in Massachusetts General Laws chapter 151B (“chapter 151B”). The Massachusetts Commission Against Discrimination (“MCAD” or the “Commission”) issues these guidelines to assist employers, employees, attorneys and the general public in understanding what constitutes sexual harassment, as well as to explain what employees and employers should do to prevent, stop and appropriately respond to sexual harassment. In addition, these guidelines discuss the circumstances under which employers and individuals may be held liable for sexual harassment in the workplace.

II. SEXUAL HARASSMENT

A. Generally

There are two types of sexual harassment: “quid pro quo” harassment and “hostile work environment” harassment. They may occur independently or concurrently.

B. Quid Pro Quo Harassment

Chapter 151B defines “quid pro quo” sexual harassment as:

sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions.

To prove a claim for quid pro quo harassment, the employee must establish the following elements:

That the alleged harasser made sexual advances or sexual requests, or otherwise engaged in conduct of a sexual nature;

the sexual conduct was unwelcome;

he or she rejected such advances, requests or conduct; and

the terms or conditions of his or her employment were then adversely affected.

or

That the alleged harasser made sexual advances or sexual requests, or otherwise engaged in conduct of a sexual nature;

the sexual conduct was unwelcome;

he or she submitted to such advances, requests or conduct; and

when he or she submitted to the unwelcome sexual conduct, he or she did so in reasonable fear of adverse employment action.

Quid pro quo harassment occurs when an employee with authority or control over the terms and conditions of another employee's work offers her a work benefit or advantage in exchange for sexual favors or gratification.

Conversely, if an employee is denied a work benefit or advantage due to her refusal to respond to, or rejection of, requests for sexual favors or gratification, she is subjected to quid pro quo harassment. Thus, either submission to, or rejection of, unwelcome sexual advances may result in quid pro quo harassment if the terms or conditions of one's employment are impacted.

Examples of such impact may include but are not limited to: termination; demotion; denial of promotion; transfer; alteration of duties, hours or compensation; or unjustified performance reviews.

Once the complainant establishes a prima facie case, the burden of production, as opposed to the burden of proof, shifts to the respondent to articulate a legitimate, nondiscriminatory reason for the adverse employment action taken, supported by credible evidence.

If the respondent meets its burden of production, the complainant must prove that the reasons offered by the respondent were not its true reasons, but were a pretext for discrimination.

For example, a complainant may meet her initial burden by showing that she was fired soon after she turned down her supervisor's request for a date. The request for a date would constitute the unwelcome advance. If there is sufficient closeness in time between the complainant's rejection of her supervisor's request and her firing, this may create an inference of causation.

The employer would then have to articulate a legitimate nondiscriminatory reason for its adverse action supported by credible evidence. For example, if the respondent credibly asserts that the complainant was terminated for poor job performance, the burden remains with the complainant to prove, by a preponderance of the evidence, that the respondent's conduct was motivated by her rejection of her supervisor's advance.

This may be done by proving that the respondent's articulated reason is false.

C. Hostile Work Environment

Chapter 151B defines “hostile work environment” harassment as:

sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.

In a hostile work environment case, the complainant must prove:

a) she was subjected to conduct of a sexual nature;

b) the conduct of a sexual nature was unwelcome;

c) the conduct of a sexual nature had the purpose or effect of creating an intimidating, hostile, humiliating or sexually offensive work environment; and

d) the conduct unreasonably interfered with complainant's work performance or altered the terms and conditions of the complainant's employment.

1. Conduct of a Sexual Nature

Examples of conduct that might create a hostile work environment include: inappropriate touching; sexual epithets, jokes, gossip, sexual conduct or comments; requests for sex; displaying sexually suggestive pictures and objects; and leering, whistling, or sexual gestures.

Harassing conduct need not be motivated by sexual desire in order to constitute sexual harassment.

2. Welcomeness

The law does not proscribe all conduct of a sexual nature. Only unsolicited and unwelcome conduct may create a hostile work environment. When the employee initiates conduct of a sexual nature or is a willing participant in a sexually charged environment, she may not be the victim of sexual harassment. Whether the conduct was “welcome” does not turn on whether the complainant's behavior was “voluntary.” When an employee only submits to harassing behavior to avoid being targeted further, to cope in a hostile environment, or because participation is made an implicit condition of employment, she is not considered to have welcomed the conduct.

The employee's rejection of, or failure to respond positively to, suggestive comments or gestures may demonstrate unwelcomeness. The fact that the employee may have infrequently joked with the alleged harasser does not demonstrate that the alleged harasser's entire course of conduct was welcome.

An employee need not communicate her objection to harassing conduct to demonstrate its unwelcomeness.

3. Conduct Creating a Hostile Work Environment

In order to rise to the level of creating a hostile work environment, the conduct must be hostile, intimidating, humiliating or offensive both from an objective and a subjective perspective.

An employee who does not subjectively perceive the behavior at issue as hostile, intimidating, humiliating or offensive is not a victim of sexual harassment within the meaning of the law, even if other reasonable individuals would consider such behavior to be so.

On the other hand, an employee who subjectively finds behavior to be hostile, intimidating, humiliating or offensive when it is not objectively so, is not a victim of a hostile work environment under chapter 151B. Thus, for example, if a female employee is faced with requests for sexual favors, the question becomes whether a reasonable person in her position would find the conduct offensive and whether she actually found the conduct offensive.

In determining whether conduct is objectively offensive, the Commission looks to whether the conduct is severe or pervasive. In order for conduct to be considered pervasive, a complainant must prove that she was subjected to “a steady barrage of opprobrious [sexual] comment or abusive treatment.”

Such treatment can involve a combination of physical and verbal conduct, e.g., unwanted groping or touching combined with profanity or sexual innuendo. Sexual harassment experienced by others in the workplace may also be relevant to the assessment of the conduct's pervasiveness.

In some circumstances, a hostile environment may be established based on a single incident, due to its severity, despite the fact that the conduct is not frequent or repetitive.

Moreover, purely verbal conduct, without a physical component, may be severe or pervasive enough to create a hostile work environment. However, minor, isolated conduct does not constitute sexual harassment.

“A few isolated remarks over a period of time” are generally insufficient to meet the pervasiveness standard.

Chapter 151B is not a clean language statute and does not prohibit all use of profane or offensive language.

4. Conduct that Interferes with an Individual's Ability to Perform Her Job

Proof of a hostile work environment claim requires a showing that the unwelcome sexual conduct created an impediment to an employee's full participation in the workplace, altered the terms and conditions of her employment, or unreasonably interfered with her work performance.

While not all offensive or inappropriate conduct will create such an impediment, one's working conditions may be altered without a showing of a tangible job detriment. Thus, an employee may seek recovery for hostile environment sexual harassment even if she has not suffered an adverse job action such as termination, suspension, or demotion.

Whether conduct interferes with an individual's ability to perform her job is essentially a question of fact based on the totality of the circumstances, which include the nature, severity and pervasiveness of the conduct and the psychological harm to the employee. Conduct that interferes with an employee's ability to do her job need not necessarily cause severe psychological harm or emotional distress to be actionable.

D. SameSex Sexual Harassment

Sexual harassment can occur between individuals of the same gender. The same standards that apply to sexual harassment between individuals of the opposite sex apply to harassment cases involving individuals of the same gender.

Under a samesex sexual harassment claim, the sexual orientations of the parties are irrelevant, as the harassing conduct need not be motivated by sexual desire to be actionable.

In addition, there is no requirement under chapter 151B that a complainant prove the conduct was motivated by his or her gender.

E. Sexual Harassment Outside of the Workplace

Chapter 151B may apply to harassment that occurs between coworkers that takes place outside the workplace. When the conduct complained of occurs outside of the workplace, the Commission may consider the following factors in assessing whether the conduct constitutes sexual harassment:

whether the event at which the conduct occurred is linked to the workplace in any way, such as at an employersponsored function;

whether the conduct occurred during work hours;

the severity of the alleged outsideofwork conduct;

the work relationship of the complainant and alleged harasser, which includes whether the alleged harasser is a supervisor and whether the alleged harasser and complainant come into contact with one another on the job;

whether the conduct adversely affected the terms and conditions of the complainant's employment or impacted the complainant's work environment.

III. EMPLOYER LIABILITY

A. Generally

Sections 4(1) and 4(16A) of chapter 151B provide the statutory basis for employer liability in cases of sexual harassment. Section 4(1) states in relevant part:

It shall be an unlawful practice:

1. For an employer, by himself or his agent, because of the ... sex of any individual to ... discriminate against such individual in compensation or in terms, conditions or privileges of employment.

* * * * * *

Section 4(16A) states:

It shall be an unlawful practice:

16A. For an employer, personally or through its agents, to sexually harass any employee.

* * * * * *

B. Employers are Liable for Harassment by Persons with Supervisory Authority An employer is liable for the sexual harassment of employees by managers and persons with supervisory authority, regardless of whether the employer knows of the conduct.

Because Massachusetts courts have determined that the Legislature intended that an employer be liable for discrimination committed by those on whom it confers authority, the courts have adopted the theory of vicarious liability in harassment cases.

An employer is liable for the actions of its managers and supervisors because they are conferred with substantial authority over subordinates and are thus considered agents of the employer.

In some circumstances, an employer may be liable for the actions of a supervisor, even if that supervisor does not have direct supervisory authority over the Complainant.

Factors the Commission will consider as indications of supervisory authority include, but are not limited to:

Undertaking or recommending tangible employment decisions affecting an employee;

Directing activities, assigning work and controlling work flow;

Hiring, firing, promoting, demoting or disciplining;

Altering or affecting an employee's compensation or benefits;

Evaluating an employee's work load;

Distributing necessary supplies and tools;

Giving directions and verifying and fixing mistakes;

Assisting employees in assigning tasks; and

Monitoring and evaluating work performance.

The employer may be vicariously liable for sexual harassment even if the alleged harasser is not formally designated as a supervisor and even if a supervisor lacks actual authority, under the doctrine of apparent authority.

Liability under these circumstances exists when the harasser holds himself out to the employee as having supervisory authority over the employee.

The employee's belief that the harasser has authority over her, to the extent that it is reasonable, may be a significant factor in determining the existence of apparent authority.

C. Employer Is Liable for Sexual Harassment in Other Circumstances

An employer may also be liable for sexual harassment committed by persons without actual or apparent supervisory authority, such as coworkers.

The complainant must show that the employer either knew or should have known about the harassing conduct and failed to take prompt, effective and reasonable remedial action.

The respondent's obligation to take remedial action is discussed in greater detail in Sect. VI(F), infra. An employer may also be liable for the sexual harassment of its employees by certain nonemployees, such as customers,

patients,

clients,

independent contractors or other acquaintances.

An employer may be held liable for the unlawful conduct of such nonemployees when the employer knew or should have known about the conduct and failed to take prompt, effective and reasonable remedial action. The primary difference between employer liability for harassment perpetrated by coworkers and harassment committed by nonemployees lies in the ability of the employer to control the conduct of the nonemployees. The greater the employer's ability to control the nonemployee's conduct, the more likely it will be found liable for that person's unlawful harassment.

IV. INDIVIDUAL LIABILITY FOR SEXUAL HARASSMENT

An individual may be held liable for sexual harassment as an employer under M.G.L. c. 151B, Sect. 4(1) and Sect. 4(16A), or under M.G.L. c.151B, Sects. 4(4A) and 4(5), which specifically prohibit “any person” from engaging in certain types of discriminatory conduct.

A. Individuals May Be Liable as the Employer

When an individual is the employer, rather than merely an agent of the employer, the individual may be liable under chapter 151B, Sect. 4(1) and Sect. 4(16A), which prohibit unlawful sexual harassment on the part of an employer. Depending on the size, nature and form of the business, an individual may be so closely identified with the business entity that the individual is personally liable as the employer.

This may apply to principals, owners, presidents or partners in a business.

B. Individuals May Be Liable Under Chapter 151B, Sect. 4(4A)

Chapter 151B, Sect. 4(4A) states that it is an unlawful practice:

for any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter....(emphasis supplied). Individuals may be subject to liability under Sect. 4(4A) for engaging in sexually harassing conduct.

Both supervisors and coworkers may be liable under this section for engaging in sexually harassing conduct.

Furthermore, the Commission has held that an individual may be liable even in circumstances where the employer is not subject to liability.

Section 4(4A) even reaches the conduct of a third party, nonemployee who sexually harasses an employee.

C. Individuals May Be Liable Under Chapter 151B, Sect. 4(5) (“Aiding and Abetting” Liability)

Chapter 151B, Sect. 4(5) states that it is an unlawful practice:

for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.

Under the language of Sect. 4(5), any individual including employees of respondents and third parties who \actively perpetrates or assists another in acts prohibited by chapter 151B can be held separately liable as an aider and abettor.

The tripartite standard for determining “aider and abettor” liability is:

The wrongful act must be separate and distinct from the underlying claim or an act in furtherance of the underlying claim;

The aider and abettor shared an intent to discriminate not unlike that of the alleged principal offender; and

The aider and abettor knew of his or her supporting role in an enterprise that deprived an individual of a right guaranteed under M.G.L. c. 151B.

Inaction by an employee may, under certain circumstances, give rise to individual liability under Sect. 4(5). For liability to attach in this circumstance, the individual must:

have knowledge of ongoing sexual harassment;

have an obligation and the authority to investigate and/or take remedial action;

intentionally fail to take such action; and

contribute to the complainant's injury by failing to act.

“[I]n situations where the inaction of the employee results from 'deliberate indifference,' and not mere inattention or negligence, such nonfeasance 'is not mere inaction, but a designed and willful act of forbearance in a situation where action is required.'“

However, if the employee has no duty to intervene to stop the harassment and is not in a position to do so, he will not be subject to liability under Sect. 4(5).

An individual may only be liable as an aider or abettor when there is evidence of a joint enterprise between more than one participant.

The individual must have specific knowledge of his or her supporting role in the unlawful enterprise.

An individual may engage in a joint enterprise with the “fictional” legal entity of the respondent corporation which possesses all of the legal attributes of a natural person if that individual is in a position to subject the employer to vicarious liability.

V. EMPLOYERS' SEXUAL HARASSMENT POLICIES AND COMPLAINT PROCEDURES

A. Sexual Harassment Policy

In Massachusetts, the law requires employers with six or more employees to adopt a written policy against sexual harassment.

The employer's policy must include notice to employees that sexual harassment in the workplace is unlawful and that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment.

The policy should also assert the employer's commitment to investigate any complaint of sexual harassment. The Commission has prepared a Model Sexual Harassment Policy and a poster.

The Commission recommends that an employer's policy include, at a minimum, all the requirements enumerated in chapter 151B and all the components of the Model Policy, as follows:

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 of sexual harassment;

a description and examples of sexual harassment;

a statement of the potential 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; and

the identity of the appropriate state and federal employment discrimination enforcement agencies and instructions as to how to contact such agencies.

Employers should specifically prohibit the dissemination of sexually explicit voice mail, email, graphics, downloaded material or websites in the workplace and include these prohibitions in their workplace policies.

An employer must present new employees with a copy of the employer's policy upon commencement of employment and provide all employees with an individual written copy of the policy on a yearly basis.

Employers should also post the policy in a conspicuous area in the workplace.

B. Sexual Harassment Training and Education

While not a requirement, chapter 151B encourages employers to conduct education and training programs on sexual harassment for all employees on a regular basis.

Employers are further advised to conduct additional training 86 for supervisory and managerial employees, which should address their specific responsibilities as well as the steps that such employees should take to ensure immediate and appropriate corrective action in addressing harassment complaints.

This is significant because employers are vicariously liable for the conduct of those persons that they place in supervisory positions.

Employers should also train employees how to recognize and report incidents of sexual harassment. In claims alleging sexual harassment, an employer's commitment to providing antiharassment training to its workforce may be a factor in determining liability or the appropriate remedy.

C. Sexual Harassment Complaint Procedure

The following suggestions regarding how to draft an appropriate complaint procedure and conduct an investigation of a sexual harassment claim are advisory in nature, rather than mandatory.

1. Employers Should Designate Person(s) to Receive Complaints of Sexual Harassment In its sexual harassment policy, an employer should designate one or more individuals as the person(s) to whom employees should report any complaints of sexual harassment. The person(s) selected should be knowledgeable and sensitive to the issues.

These typically include managers, supervisors, human resource personnel, principals of the employer or inhouse counsel. The full names of these individuals, together with their work addresses and telephone numbers, should be included in the policy provided to employees.

The employer's internal complaint procedure should also be calculated to encourage complainants to come forward by:

designating more than one individual to receive complaints;

designating individuals of both sexes to receive complaints;

designating individuals at different levels of authority to receive complaints;

allowing complaints to be communicated orally; and

allowing a complainant to report allegations to someone other than his or her supervisor.

It is also advisable for an employer to identify the person(s) and/or the department within the organization that will be authorized to initiate an internal investigation into a complaint of harassment. Any employee who receives a complaint of sexual harassment, or is made aware of any sexually harassing behavior, should immediately report it to the designated person(s) and/or the designated department.

Under no circumstances should an employer:

require an employee to complain directly to the person alleged to have engaged in the sexual harassment;

insist that filing a complaint within the company is a prerequisite to filing or pursuing a complaint of sexual harassment with the MCAD or the United States Equal Employment Opportunity Commission (“EEOC”);

instruct an employee not to file a complaint with the MCAD or EEOC; or

instruct an employee not to cooperate with the MCAD or EEOC in an investigation.

2. Duties of Persons Receiving Complaints of Sexual Harassment

The individuals designated to receive complaints of sexual harassment on behalf of the employer should document the receipt of any such complaints. It is advisable for that person to maintain the records in a way that allows for the identification of repeat offenders.

Employers should instruct recipients of sexual harassment complaints to inform complainants and alleged perpetrators that they will:

keep the complaint confidential to the extent practicable under the circumstances;

conduct a prompt, neutral investigation into the allegations; and

not tolerate any form of retaliation against the complainant for having complained of sexual harassment.

VI. INVESTIGATING SEXUAL HARASSMENT COMPLAINTS

A. Preliminary Issues

In general, the employer should always investigate a complaint of sexual harassment as soon as practicable, even if an employee asks that it not investigate his or her claim. Employers should investigate any claim involving physical violence immediately. The nature and duration of the investigation will depend on the circumstances of the complaint, including the type, severity and frequency of the alleged harassment.

B. Conducting the Investigation

Employers should investigate allegations of sexual harassment in a fair and expeditious manner, in a way that maintains confidentiality to the extent practicable. Employers should inform complainants that they have a legal duty to investigate allegations of sexual harassment, and that, while the matter will be kept as confidential as possible, it may not be possible to withhold the complainant's identity from the alleged harasser. The employer's investigation should generally include interviews of the complainant, the alleged harasser, witnesses, individuals whom any of the foregoing identify as having knowledge of potential relevance to the allegations, and anyone else whom the employer believes may have such knowledge.

These interviews should be conducted in a way that protects the privacy of the individuals involved to the extent practicable under the circumstances. They should also be conducted in person where possible.

The investigator should inform each interviewee, as well as any other individual apprised of the investigation, that the investigation is confidential and should not be discussed with coworkers. The investigator should further inform them that the employer will not tolerate any retaliation against the complainant or anyone else who cooperates with the investigation. The investigator should also prohibit interference with or obstruction of any investigation by the MCAD or EEOC into the allegations.

The employer's investigation should also include a review of any documents, journals, recordings, photographs, voice mails, emails, telephone records, or other items that may be relevant to the allegations of harassment.

C. The Investigative File

The investigator should take notes during interviews, or soon thereafter, for the purpose of maintaining accurate records. The investigator should create and maintain a confidential investigative file separate from personnel files. The file should include any materials relevant to the investigation, including but not limited to interview notes, relevant employment documents, journals, recordings, photographs, voice mails, emails, telephone records, or other items pertaining to the allegations or the investigation into them.

D. Special Issues Regarding the Investigation

1. Confidentiality

The employer should ensure that the investigation is kept as confidential as possible, by communicating information about the investigation only to those that need to know about it. An employer should not promise absolute confidentiality to the complainant, the alleged harasser or other witnesses, because such a promise may obstruct the employer's ability to conduct a fair and thorough investigation. Generally, the complainant and the alleged harasser should be kept informed of the status of the investigation during the process.

2. Interim Measures Pending the Outcome of the Investigation

During the investigation, it may be necessary or advisable for the employer to take measures to separate the alleged harasser from the complainant. These measures should be carefully crafted to minimize the chance that the alleged harasser will either continue to harass the complainant or will retaliate against her. The employer must also ensure that the measures themselves do not amount to retaliation against the complainant. The employer should consider a number of factors in deciding what interim measures to take, including, but not limited to, the following:

the expressed wishes of the complainant;

the nature and extent of the allegations;

the personal safety of the complainant;

the number of complainants;

whether the alleged harassment is of an ongoing nature;

the behavior of the alleged harasser; and

whether the alleged harasser has an alleged or actual history of engaging in harassment.

Consideration of these factors may lead the employer to decide that certain interim measures are necessary and/or advisable. Such measures might include, but are not limited to:

placing the alleged harasser on administrative leave;

placing the complainant on administrative leave, if the complainant so requests;

transferring the alleged harasser, or the complainant if she requests, to a different area/department or shift so that there is no further business/social contact between the complainant and the alleged harasser;

instructing the alleged harasser to stop the conduct; and

eliminating the alleged harasser's supervisory authority over the complainant.

During the investigation, the employer has a duty to take the necessary steps to eliminate from the workplace the harassment about which the complainant has complained.

The fact that it may be burdensome for the employer to take such action does not diminish this duty.

The employer should monitor any interim measures that it takes throughout the investigation. Monitoring may include assessing whether the interim measures meet the goals of preventing ongoing harassment, protect