Sexual Harassment in the Massachusetts Workplace: What Employees and Employers Need to Know

---

Sexual Harassment in the Massachusetts Workplace: What Employees and Employers Need to Know

Sexual harassment in the workplace has been a central issue in employment law for decades. It gained significant national attention in 1991, when testimony during the Clarence Thomas Supreme Court confirmation hearings brought the subject into living rooms across the country. The passage of the Civil Rights Act of 1991 added emotional distress and punitive damages to the remedies available under federal law, which dramatically increased both the volume and the stakes of harassment litigation. The issue has returned to the forefront of public consciousness through the #MeToo movement, which renewed focus on accountability in the workplace and prompted employees and employers alike to reconsider what they know about the law in this area.

Sexual harassment claims in Massachusetts can arise under both state and federal law, and understanding the available legal frameworks, the types of claims that exist, and the obligations that fall on both sides of the employment relationship is essential for anyone dealing with this issue.

The Primary Legal Framework in Massachusetts

The primary source of protection against sexual harassment in Massachusetts is General Laws chapter 151B, which makes it unlawful for any employer, personally or through its agents, to sexually harass any employee. Massachusetts law defines 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 conduct is made a term or condition of employment or a basis for employment decisions, or when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment.

Chapter 151B applies to employers with six or more employees and is enforced through the Massachusetts Commission Against Discrimination (MCAD). Employees must file a complaint with the MCAD within 300 days of the unlawful conduct in order to preserve their rights. Missing that deadline generally means losing the right to pursue the claim.

When an employer has fewer than six employees and chapter 151B does not apply, Massachusetts provides an additional avenue through General Laws chapter 214, section 1C. That statute grants every person the right to be free from sexual harassment regardless of the size of the employer, and it covers situations that fall outside chapter 151B’s reach, including claims against very small employers, claims involving volunteers, and claims arising outside a traditional employment relationship. If a chapter 151B claim is also available, however, a person must exhaust their administrative remedies under chapter 151B before pursuing a direct court action under section 1C.

At the federal level, Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, and courts have interpreted that prohibition to encompass sexual harassment. Title VII applies to employers with fifteen or more employees, and claims are filed with the Equal Employment Opportunity Commission (EEOC). One important distinction under Title VII is that an employee must prove the harassment occurred because of sex, meaning that sex was a motivating factor in the conduct. Federal law also provides employers with an affirmative defense in certain circumstances, discussed further below.

Two Types of Sexual Harassment

There are two main categories of sexual harassment under Massachusetts law: quid pro quo harassment and hostile work environment harassment.

Quid pro quo is Latin for “this for that,” and it describes situations in which a workplace benefit or a job consequence is tied to the acceptance or rejection of sexual conduct. To establish a quid pro quo claim, an employee must show that the alleged harasser made unwelcome sexual advances or engaged in sexual conduct, that the employee either submitted to or rejected that conduct, and that submission or rejection was made an explicit or implicit condition of employment or a basis for an employment decision. Classic examples include a supervisor who conditions a promotion on sexual favors, or who retaliates against an employee for rejecting a sexual advance by reducing hours, changing assignments, or terminating employment.

A hostile work environment claim does not require that the employee suffer a concrete job consequence such as termination or demotion. Instead, it focuses on whether the workplace itself was made sufficiently hostile, intimidating, humiliating, or offensive by the harasser’s conduct as to interfere with the employee’s ability to do their job. To establish such a claim, an employee must show that the conduct was of a sexual nature, that it was unwelcome, and that it created a hostile or humiliating work environment that interfered with the employee’s ability to perform their work. The standard has both an objective component, whether a reasonable person in the plaintiff’s position would find the environment hostile or abusive, and a subjective component, whether the conduct in fact interfered with this particular employee’s work performance. Importantly, the behavior must be severe and pervasive. The law does not prohibit all conduct of a sexual nature, and joking in the office is permissible up to the point at which it becomes hostile and intimidating.

Welcome Conduct Versus Unwelcome Conduct

One of the most frequently misunderstood points in sexual harassment law is the distinction between conduct that was voluntary and conduct that was welcome. An employee who submits to sexual conduct in order to keep their job, avoid retaliation, or simply get through the workday has not welcomed that conduct. If an employee submits to harassing behavior only in order to cope in a hostile environment or because participation is made an implicit condition of employment, that employee is not considered to have welcomed the conduct. By contrast, an employee who initiates conduct of a sexual nature or is a willing and active participant in a sexually charged environment generally cannot claim that same conduct as harassment.

Not every uncomfortable or offensive remark in the workplace rises to the level of illegal harassment. The law requires that the conduct be sufficiently severe or pervasive to create a hostile environment. A single comment, however offensive, ordinarily will not be enough unless it is egregious. A pattern of repeated conduct, even if each individual incident seems minor in isolation, can cumulatively satisfy the standard. In some cases involving physical conduct, a single incident can be severe enough on its own. Conduct does not have to be overtly sexual in nature to support a claim, and sexist conduct that degrades employees on the basis of their gender or undermines a person’s ability to succeed because of their sex can be considered as part of a hostile environment claim.

Employer Liability

Massachusetts employers are strictly liable for quid pro quo sexual harassment. Employers are also strictly liable for hostile work environments created by managers and persons with supervisory authority, regardless of whether the employer knows of the conduct. Where the harasser is a coworker rather than a supervisor, the employer will be liable if it knew or should have known about the harassment and failed to take adequate steps to address it. Perhaps less intuitively, an employer may also be liable for the sexual harassment of its employees by certain non-employees such as customers, clients, independent contractors, or other acquaintances, if the employer knew or should have known of the harassment and failed to take action.

Under federal law, an employer has an affirmative defense available in supervisor harassment cases where no tangible job action was taken against the employee. To use that defense, the employer must show that it exercised reasonable care to prevent and promptly correct harassing behavior, and that the employee unreasonably failed to take advantage of those preventive or corrective opportunities. This defense underscores the importance, for both sides, of having clear reporting procedures and of actually using them. For example, if an employer has a policy prohibiting harassment and an employee unreasonably fails to report harassment under that policy, the employer may cite this as an affirmative defense to liability.

What Employees Should Do

Document everything as it happens. Write down dates, times, locations, who was present, and exactly what was said or done. Keep this record somewhere other than a work device. If you receive harassing communications by text or email, preserve them.

Report the conduct through whatever procedure your employer has established. If your employer has a written harassment policy with a designated reporting process, use it. If you are uncomfortable reporting to your direct supervisor because the supervisor is the harasser, use an alternative reporting channel if one exists. Your report creates a record and puts the employer on notice, which matters both for the employer’s liability and for your own legal position.

Be aware of the 300-day filing deadline under Massachusetts law. If you intend to file a complaint with the MCAD, that complaint must be filed within 300 days of the conduct you are complaining about. Waiting to see how things develop, or hoping the situation will resolve on its own, can cost you your right to pursue a claim. If you are approaching that deadline and have not yet spoken with an attorney, the time to do so is now.

What Employers Must Do

Every employer with six or more employees is required under Massachusetts law to adopt a written policy against sexual harassment and to distribute it annually to all employees. That policy must clearly define sexual harassment, make plain that it will not be tolerated, identify to whom complaints should be directed along with that person’s work address and telephone number, and explain that retaliation against anyone who reports in good faith is prohibited. The Massachusetts Commission Against Discrimination has prepared a Model Sexual Harassment Policy that employers may use as a starting point. It is also recommended that the policy incorporate all of Massachusetts’ additional protected classes, including race, color, religious creed, national origin, sex, gender identity, age, disability, sexual orientation, and others, resulting in a comprehensive anti-harassment policy. Employees should review and sign the policy, acknowledging that sexual harassment in the workplace is unlawful as a form of sex discrimination under M.G.L. c. 151B, § 3A.

Training matters. Supervisors and managers in particular need to understand what sexual harassment is, what their obligations are when they observe or receive a report of it, and how to respond appropriately. Chapter 151B encourages employers to conduct education and training programs on sexual harassment for all employees on a regular basis, and detailed records must be maintained of which employees attended and when. An untrained supervisor who mishandles a complaint can significantly increase the employer’s exposure. Ignoring unlawful behavior enables wrongdoers to continue harassing other employees, which results in a less productive work environment and, potentially, a more serious legal problem.

When a complaint is made, investigate it promptly and document the investigation thoroughly. Employers are strongly encouraged to investigate any and all claims of sexual harassment, including written, verbal, anonymous, formal, and informal complaints. Even claims outside the 300-day timeframe should be investigated. The investigation should be conducted by someone with appropriate authority and training, should be reasonably thorough, and should be documented in writing. When an investigation concludes that there has been a violation of the sexual harassment policy, corrective action must be taken. Discipline of the responsible party can range from a verbal warning up to and including termination, depending on the circumstances, and the employer may also require the employee to attend training. With regard to the complainant, the employer may need to correct the effects of the discrimination and should follow up periodically.

Do not retaliate. Retaliation against an employee who reports harassment, participates in an investigation, or files a complaint with the MCAD or the EEOC is independently unlawful and can give rise to a separate claim that may be easier to prove than the underlying harassment claim. Even if the employer concludes that a complaint was unfounded, treating differently the employee who made it is a serious legal risk.

Damages

Beyond chapter 151B, a victim of sexual harassment in Massachusetts may seek recourse under federal law pursuant to Title VII of the Civil Rights Act of 1964. If an employer is found liable and the case is filed in state or federal court, an employee may be awarded damages for lost wages and benefits, emotional distress, attorney’s fees, and statutory interest. Injunctive relief may also be available. If the unlawful acts are found to be malicious, punitive damages may also be awarded. If the case remains at the MCAD, punitive damages cannot be assessed, but a fine may be assessed against the employer.

By implementing a strong sexual harassment policy, training employees, and promptly investigating allegations of sexual harassment, employers take meaningful steps to protect themselves from exposure to liability and to demonstrate that they exercised reasonable care to prevent and correct unlawful conduct. Taking these steps now, rather than waiting for a complaint to arrive, is the most effective approach.

DISCLAIMER: The information provided in the pages and posts of this website are for general informational purposes only. The information presented on this site is not legal advice, and no attorney-client relationship is formed by the use of this site.