The Massachusetts Legislature has amended the state statute which outlaws employment discrimination by adding a requirement that employers adopt specific policies against sexual harassment. The amendment will become effective on November 6, 1996 for Massachusetts employers with fifteen or more employees and on January 1, 1997 for employers with between 6 and 14 employees.

The new law requires that the policy against sexual harassment include:

• A statement that sexual harassment in the work place is unlawful.
• A statement that retaliating against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of a complaint for sexual harassment is unlawful.
• A description and examples of sexual harassment.
• A statement of the range of consequences for employees who commit sexual harassment.
• A description of the procedure for filing internal complaints of sexual harassment including the work address and telephone number of the person or persons to whom complaints should be made.
• Identification of the Massachusetts Commission Against Discrimination (MCAD) and Equal Employment Opportunity Commission as being the agencies with responsibility for enforcing employment discrimination laws, including directions on how to contact those agencies.

The statute requires employers to provide an individual copy of the sexual harassment policy to all employees before the statute's effective date. The law also requires that an employer annually distribute a written copy of the policy to all employees. All new employees must be given an individual written copy of the policy when they begin employment.

The law also encourages employers to have education and training programs which, at a minimum, educate employees about the requirements of the new law. Employers are also encouraged to have additional training for supervisors and management employees. Existing employees should be trained on or before the statute's effective date. New employees should receive education and training within one year of their start date.

Failing to comply with this law will not, in and of itself, create liability. Failure to comply with the statute could have significant consequences. For instance:

• The Chairman of the MCAD recently stated that an employer who does not comply "runs the risk that when it is hit with a complaint the noncompliance will be used against it." This would especially be true where the employee or ex-employee alleges that they were sexually harassed by reason of a hostile work environment.
• A jury could also consider an employer's noncompliance in deciding whether to assess punitive damages against the employer. Because Massachusetts law provides that employers are strictly liable for sexual harassment by a supervisor and that supervisors may be individually liable for sexual harassment, it is important for employers to create a mechanism for assuring that management becomes aware of problems as soon as possible so that it can take "prompt and effective" steps to stop the behavior and at least mitigate the damages.
• The statute could have an effect on the liability of employers as far as the adequacy of the remedial steps taken for a sexual harassment claim. If an employer does not follow the letter of the law, the noncompliance can be used to show that an investigation was not sufficient. Even though sexual harassment training programs are not mandatory under the statute, employers will have difficulty explaining at a sexual harassment trial why they did not implement measures that are encouraged by law.

Given the specific requirements in the new law and the substantial exposure which employers face when defending sexual harassment actions, Massachusetts employers must revise existing policies and should schedule education and training programs for employees.

The MCAD has announced that it will distribute a poster and a model policy. Employers should contact the agency to obtain a copy of the materials at 739-2145 in Springfield.