Many people don’t realize that sexual harassment is actually a form of sex discrimination. The statute that makes sexual harassment unlawful in Massachusetts is MGL 151B and, although there are also federal statutes that prohibit sexual harassment, often, assuming that the cause of action occurred in Massachusetts, it is better for an employee, to file the action using the Massachusetts law. The Massachusetts Commission Against Discrimination is the agency that enforces the statute, and it is located at 1 Ashburton Place in downtown Boston. Although it may be advisable to utilize the services of an experienced employment attorney in pursuing a claim, the Commission does not require that you do. The agency is actually in the executive branch of the government, i.e. the Governor appoints the Commissioners and is responsible for the agency’s management, and therefore, because it is not in the judicial branch of government, the rules of evidence don’t strictly apply. This can sometimes allow the “story” to be more easily presented.
The statute defines two specific forms of sexual harassment: “quid pro quo” harassment, where the request for sexual favors or acquiescence in sexual advances becomes necessary in order to maintain the person’s job, or as a requirement for promotions; and “hostile environment” sexual harassment which is defined as an environment which “unreasonably interferes with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” I often describe this second type as conduct of a sexual nature that is hostile and does not allow an employee to fully participate in the workplace. The statue of limitations on these claims is 300 days from the date of the actions, but this issue is often more complicated than just counting the days on a calendar so it is wise for an employee to check with the Commission, or an attorney, prior to making any definite decisions.
Over the years, I have had a number of cases where the defendant employer has claimed that they were unaware of the conduct and, therefore, cannot be responsible for the behavior. In Massachusetts this is not a defense, assuming that the conduct in question is from a supervisor or someone acting in a supervisory capacity. This is not necessarily the case in either Federal Court or in some other states, and is one of the reasons that the Massachusetts Commission is a preferable forum for employees.
Cases of sexual harassment are often very delicate and difficult for both the employer and the employee, and they can get very emotional. They are usually “fact driven” cases and often revolve around the credibility of the parties and/or witnesses. The judgments in these cases are varied with some cases resulting in complete aquitals for the employers or in judgments for the employee. The judgments for the employee can range from nominal damages to the thousands, or even in rare cases to seven figures. If you are an employer who has been accused of sexual harassment, or an employee who has been the victim of harassment, it is a good idea to at least talk with an experienced employment attorney prior to taking any action since the only person who has legal rights is the person who knows what those legal rights are.
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