SEXUAL HARASSMENT

Because the definition of "sexual harassment" can be surprisingly broad, and damage awards in such cases can be very large, employers need to know what to do to protect themselves. Nearly all employers are required to comply with sexual harassment laws. Employers of six or more people are required to comply with Chapter 151B, the state sexual harassment statute. There is also another state sexual harassment statute which applies to employers of fewer than six employees.

WHAT CONSTITUTES UNLAWFUL SEXUAL HARASSMENT?

There are two types of sexual harassment:

Quid Pro Quo: when an employee is asked to submit to sexual advances or sexual conduct in exchange for a workplace benefit such as a promotion, or continued employment, or when an employee is fired or otherwise receives disadvantageous treatment as a result of refusing to submit to such behavior.

Hostile Environment Sexual Harassment: sexual advances, requests for sexual favors or verbal or physical conduct of a sexual nature which has the purpose or effect of unreasonably interfering with a person's workplace performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.

Among the kinds of conduct which could constitute hostile environment sexual harassment are:

• sexual jokes or comments;

• discussions of one's own sexual life;

• questioning others about their sexual lives;

• displaying sexual cartoons, objects, or pictures;

• staring at someone in a sexual way;

• brushing against or touching people in a sexual way;

• commenting about peoples' bodies;

• making disparaging remarks based on gender ("You're just a dumb woman");

• persistent requests for dates;

• horseplay which includes sexual comments or gestures.

Harassment on the basis of any category protected by discrimination statutes (race, color, national origin, age, religion, homosexuality, transgender status, military status, pregnancy or disability) also violates the law. Examples of cases of this kind of unlawful workplace harassment are one in which an employer repeatedly referred to one of his employees as "an old bag", and a case in which an employer repeatedly ridiculed a Muslim employee's religion, and went so far as to wipe his feet on the employee's sacred prayer rug.

SOME FACTS ABOUT HARASSMENT THAT MANY PEOPLE DON'T KNOW

Many employers may not be aware of some of the following aspects of harassment law:

• Harassment doesn't necessarily have to be specifically directed at the employee who complains about it to be actionable. For example, it may constitute sexual harassment if an employee overhears comments about women which are offensive to her, and which are upsetting enough to her interfere with her work performance, even though the comments were not directed at her specifically.

• It may still be actionable harassment even if the harasser has absolutely no intent to offend or harass the person who complains of it. Hostile environment sexual harassment is defined as harassment which has the purpose or effect of creating a hostile or intimidating environment. Thus, the person who tells jokes, thinking he is being funny, and having absolutely no intent to harass the person who considers his jokes to be harassment, may still have engaged in actionable harassment.

• Employees do not necessarily have to complain to anyone at their workplace before bringing a claim of harassment. Sometimes employees do not make an internal complaint because they fear being viewed as a complainer or a poor sport. The fact that an employee doesn't tell the alleged harassers that their conduct is unwelcome, or make a complaint to management, does not necessarily preclude her/him from filing a lawsuit.

• It is an independent violation of discrimination law to retaliate against an employee who makes a good faith complaint of unlawful harassment, or to retaliate against an employee who assists in an investigation of harassment, or provides testimony or other kinds of support to a co-worker who complains of harassment.

• It is an independent violation of discrimination law to fail to take action if an employee complains of unlawful harassment. An employer by law is required to conduct a prompt, fair and thorough investigation of any harassment complaint and, if the complaint is substantiated, to take prompt, effective remedial action to prevent any further harassment from occurring. Some of the largest judgments in harassment cases have come in cases in which an employee repeatedly complained of unlawful harassment and the employer did nothing about it.

• Both harassers, and responsible company officials who fail to take action when harassment complaints are made to them, can be held individually liable.

• Consult an employment attorney if your company receives an internal harassment complaint! There are many considerations which must be taken into account to protect your company in this situation which is fraught with litigation risks. Your attorney will be able to help you determine who to interview, who should conduct the interviews, what questions to ask, what should and should not be said, what evidence to seek, what types of investigatory records should and should not be created, and so on.

• Employers are required to annually circulate to all employees a comprehensive written anti-sexual harassment policy. A copy should also be provided to newly hired employees. A sample policy is available at the Massachusetts Commission Against Discrimination website. Although it is advisable to stick very closely to the MCAD's sample language, language should be added reflecting that sexually explicit emails, voicemails and other electronic communications are also prohibited. In addition, it would be advisable to include language stating that harassment on the basis of any protected category, such as race, sexual preference, religion, etc. is also prohibited. Employers should retain documentation reflecting that these required notices have been issued.

• It would be advisable to provide training to both supervisors and lower level employees about workplace harassment. A state statute and the Massachusetts Commission Against Discrimination website strongly recommend that employers conduct such training for all current employees, and then once a year for all employees newly added that year. Educating employees as to the types of conduct that are prohibited should help prevent such conduct from occurring. Moreover, encouraging employees to complain if they feel that harassment has occurred makes it more likely that harassment will come to light and be rectified before it becomes severe and pervasive enough to be legally actionable. In addition, providing such training may provide helpful defenses should a harassment claim be brought against your company. (I provide this training in reasonably priced one hour sessions. For more details, see the "Employee Training" section of my website. My training would also provide many more tips for protecting the company from harassment claims than can be described in this article.)

THIS MEMORANDUM IS FOR GENERAL INFORMATION ONLY, AND IS NOT INTENDED TO PROVIDE LEGAL ADVICE AS TO ANY PARTICULAR SITUATION. EMPLOYMENT LAWS ARE CONSTANTLY SUBJECT TO CHANGE. QUESTIONS ABOUT PARTICULAR SITUATIONS SHOULD BE DIRECTED TO A KNOWLEDGEABLE EMPLOYMENT ATTORNEY.