Sexual Harassment and Employment Law
I was recently retained by a client to file a lawsuit against her former employer for sexual harassment. Massachusetts General Laws chapter 151B expressly prohibits sexual harassment. Additionally, in College-Town, Div. of Interco, Inc. v. Massachusetts Com’n Against Discrimination, the Massachusetts Supreme Judicial Court has recognized sexual harassment as a form of sex discrimination, prohibited under the discrimination laws. 400 Mass 156 (1987).
The law recognizes two categories of sexual harassment. First, is quid pro quo; the old “You scratch my back and I’ll scratch yours.” This means sexual favors are sought as a condition of employment or as a basis for employment decisions, such as pay increases or promotions. The second category is the hostile work environment, where physical or verbal conduct of a sexual nature unreasonably interferes with the employees ability to fully participate in the workplace. This is conduct that creates an intimidating, hostile, humiliating, or sexually offensive environment. These days it is this second category that we tend to see more frequently.
As part of the initial analysis during a consultation, we need to look at the conduct in its entirety, and determine if it is both subjectively and objectively offensive. What this means is we look to see if the conduct that the client experienced made that individual client feel intimidated, humiliated, or offended (subjective). We then have the “reasonable person” test (objective). Would a reasonable person in the same situation as the client also have felt intimidated, humiliated, or offended? It is important, however, to keep in mind that vulgar language, although offensive to many people, is not considered to necessarily be a cause for sexual harassment. The courts have concluded that the prohibition against sexual harassment does not necessarily translate to “clean language.” Prader v. Leading Edge Products, Inc., 39 Mass App Ct 616, 619 (1996). In Massachusetts, if the sexual harassment is done by a supervisor against his subordinate, the company itself could also be held strictly liable for the actions of the supervisor.
Another issue that tends to come up frequently in the sexual harassment arena is when there is a consensual office romance. If a supervisor is showing favoritism to his paramour in the office, providing special treatment regarding raises, promotions, time off request, etc., the Massachusetts Appeals Court has noted that other employees may have a cause of action against the employer. The Court explained that this type of behavior could sometimes rise to the level of a hostile work environment. Ritchie v. Department of State Police, 60 Mass App Ct 655, 662 (2004). There could potentially be another issue between that supervisor and the paramour when/if that relationship breaks up.
In the end, employers must be very careful and vigilant when it comes to the area of sexual harassment. The law requires them to adopt sexual harassment policies, informing employees that such behavior is unlawful. It is also unlawful for the employer to retaliate against the employee for making complaints about sexual harassment. The policies must further detail how employees can go about reporting sexual harassment internally, as well as externally to the Massachusetts Commission Against Discrimination. It would be wise to review your employer’s policies regarding sexual harassment, and to know how to report such behavior in the event that you become a victim. A consultation with an experienced sexual harassment attorney could also help you to know your rights. At the Law Office of Stark & Heiner, we believe that the only person who truly has rights is the person who knows what those rights are.