1 These guidelines will not answer every question concerning application of the laws regarding sexual harassment. The Commission issues these guidelines pursuant to its statutory authority to enforce the Commonwealth's anti-discrimination laws. This Commission exists to enforce Mass. Gen. L. ch. 151B and is not bound by federal law. However, "the Federal guidelines can be used to guide Massachusetts in interpreting G.L. c. 151B." LaBonte v. Hutchins & Wheeler, 424 Mass. 813, 823 n.13 (1997).
Important note: The case cites in the footnotes to these guidelines are provided for reference purposes only and in no way limit the Commission's ability to interpret the anti-discrimination laws
10 Although these Guidelines use a female pronoun to refer to the "complainant" or the victim of sexual harassment, a victim can be of either sex, and harassment can occur between people of the same sex.
11 See, e.g., Richards v. Walter Fernald State School, 2000 WL 1473024 at *3 (Mass. Super. Ct. July 31, 2000) (where the court denied summary judgment on a quid pro quo claim as a jury could find an encounter in which plaintiff's supervisor said he would "forget all about" the problem of plaintiff not signing a memo if she would "go out" with him amounted to quid pro quo sexual harassment).
12 An employer may also be liable for quid pro quo sexual harassment if an employee loses an opportunity or benefit to another employee because of the other employee's submission to sexual advances or requests for sexual favors. See EEOC Sexual Harassment Guidelines, 29 CFR 1604.11(g).
19 Pursuant to Chapter 151B, the analysis governing a hostile work environment claim applies to claims of harassment based on all Chapter 151B protected categories. For example, an employee who is subjected to derogatory or insulting comments or images referencing his or her race may have a claim for racial harassment. Rainey v. Monsanto Co., 22 MDLR 303, 309-10 (2000); see also Lazure v. Transit Express, Inc., 22 MDLR 16, 18 (2000) ("it is appropriate to analyze a claim of ... racial harassment using the models established in sexual harassment cases").
22 Massachusetts Commission Against Discrimination Model Sexual Harassment Policy 96-2. See, e.g., Cuddyer v. The Stop & Shop Supermarket Co., 434 Mass. 521, 523-26 (2001); Muzzy v. Callihane Motors, Inc., 434 Mass. 409, 410-11 (2001).
23 Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997). A closely related cause of action not addressed in these guidelines is gender harassment. To establish liability for harassment based on gender, a complainant must establish that (1) she is a member of a protected class; (2) she was the target of speech or conduct based on her membership in that class; (3) the speech or conduct was sufficiently severe or pervasive to alter her conditions of employment and create an abusive working environment; and (4) the harassment was carried out by an employee with a supervisory relationship to complainant, or respondent knew or should have known of the harassment and failed to take prompt remedial action. Fluet v. Harvard University, 23 MDLR 145, 161 (2001); Lazure v. Transit Express, Inc., 22 MDLR 16, 18 (2000). See also Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 441 (1st Cir. 1997) ("[m]any different forms of offensive behavior may be included within the definition of hostile environment sexual harassment") (citing Spain v. Gallegos, 26 F.3d 439, 447 (3d Cir. 1994)). However, the overtones of such behavior must be, at the very least, sex-based, so as to be a recognizable form of sex discrimination").
24 Ramsdell, 415 Mass at 678, n.4; see also Lawless, 22 MDLR at 142-43 (complainant's voluntary participation to some degree in the sexual banter that permeated the workplace did not bar recovery on her sexual harassment claim as complainant used vulgar language because she needed to fit into the environment and minimize the workplace friction).
48 College-Town, 400 Mass. at 165-167; Holt v. Minuteman Flames Minor Hockey Ass'n, 22 MDLR 373, 375 (2000); Miller v. Berkshire Hospitality Corp., 22 MDLR 321, 324 (2000); Rowe v. American Paper Products, Inc., 22 MDLR 279, 282 (2000); Messina v. Araserve, Inc., 906 F. Supp. 34, 37 (D. Mass. 1995); LeClerc v. Interstate Distrib. Div. of Hudson News Co., 2000 WL 33170694 at *6 (Mass. Super. Ct. Aug. 31, 2000).
52 See, e.g., Fluet v. Harvard University, 23 MDLR 145, 163 (2001); Doucimo v. S & S Corp., 22 MDLR 82, 87 (2000); Albee v. New England Medical Center Hosp., Inc., 1997 WL 691524, at *7 (Mass. Super. Ct. Oct. 30, 1997); Lazure v. Transit Express, Inc., 22 MDLR 16, 19 (2000); Levesque v. Quality Brands Liquor, 19 MDLR 154, 156 (1997); Przybycien v. Aid Maintenance Co., 13 MDLR 1267, 1281 (1991). See also Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, June 18, 1999, subsection III ("Who Qualifies as a Supervisor?") (A copy of this EEOC Guidance can be obtained at http://www.eeoc.gov/docs/harassment.html).
53 Under Massachusetts law, apparent authority is created when "written or spoken words or any other conduct of the principal which, reasonably interpreted, causes a third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him." Zortman v. Bildman, 1999 WL 1318959, at *11 (Mass. Super. Ct. Jan. 15, 1999) quoting Weisman v. Saetz, 11 Mass. App. Ct. 440, 442 (1981); see also Restatement (Second) of Agency §§ 7, 8 (1957) ("Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other's manifestations to such third persons.").
56 College-Town, 400 Mass. at 165-66; Comeau v. Idea Lube, Inc., 22 MDLR 5, 7 (2000); Levesque, 19 MDLR at 156; Messina v. Araserve, Inc., 906 F. Supp. 34, 38 (1995); Battenfield v. Harvard University, 1993 WL 818920 at *4 (Mass. Super. Ct. Aug. 31, 1993).
57 Actual knowledge is most commonly established by demonstrating that the employee informed a supervisory level employee of the alleged harassment. See, e.g., Jordan v. Prime Laminating, Inc., 22 MDLR 151, 153 (2000).
58 The employer may be held liable when it is on constructive notice of unlawful conduct, or when it "should have known" of the conduct. See, e.g., Parent v. Spectro Coating Corp., 22 MDLR 221, 225-26 (2000). Cf. Gilman v. Instructional Systems, Inc., 22 MDLR 237, 241 (the complainant failed to prove that respondent "knew or should have known" about harassment allegedly perpetrated by her co-worker because she never informed her supervisor and, the only person she did inform was another co-worker).
59 See, e.g., Beldo v. Univ. of Massachusetts Boston, 20 MDLR 105, 111 (1998); Richards, 16 MDLR at 1668-69; Parent, 22 MDLR at 225-6; Rounds v. Dep't. of Corrections, 19 MDLR 90, 100 (1997); Russell v. Hillcrest Educational Centers, Inc., 23 MDLR 91, 95-96 (2001).
60 Rodriguez-Hernandez v. Miranda- Velez, 132 F.3d 848, 854 (1st Cir. 1998) (customer has no liability, but employer liable for discharging plaintiff after she complained of sexual harassment by customer); Burman v. Boch Oldsmobile, Inc., 1995 WL 809940 at *4 (Mass. Super. Ct. Apr. 11, 1995). See, e.g., Folkerson v. Circus Enterprises, Inc. 107 F.3d 754, 756 (9th Cir. 1997); Powell v. Las Vegas Hilton Corp., 841 F. Supp. 1024, 1028 (D. Nev. 1992).
64 Handy, 21 MDLR at 38 (Commission concluded that respondent was not liable for the conduct of a client because it had insufficient control over client and took measured and reasonable steps to alleviate the harassing conduct).
65 Beaupre v. Cliff Smith & Associates, 50 Mass. App. Ct. 480, 490-91 (2000) (employer's president individually liable for both quid pro quo and hostile work environment sexual harassment; plain language of the statute provides on its face for individual personal liability for unlawful sexual harassment actively perpetrated by president himself); Ruffino v. State Street Bank and Trust Co., 908 F. Supp. 1019, 1048 (D. Mass. 1995).
66 Raffurty v. Keyland Corp., 22 MDLR 125, 127 (2000) (president and owner of employer corporation who made such persistent verbal and physical sexual overtures to employee that she was finally compelled to quit held personally liable for hostile work environment sexual harassment; corporation also vicariously liable).
67 MCAD v. Medical Weight Loss Center, Inc., 23 MDLR 5, 12 (2001) (owner held individually liable where he coerced, intimidated, interfered with, and retaliated against the complainant in the exercise of her right to be free from harassment based on her sex and sexual orientation).
68 Compare Deeter v. Bravo's Pizzeria and Restaurant, 23 MDLR 167 (2001) with Rushford v. Bravo's Pizzeria and Restaurant, 23 MDLR 171 (2001); see also Doucimo v. S & S Corp., 22 MDLR 81, 87 (2000); Morehouse v. Berkshire Gas Co., 989 F. Supp. 54, 61 (D. Mass. 1997). An individual person can also be liable for acts of retaliation under § 4(4). See Bain v. City of Springfield, 424 Mass. 758, 765 (1997) (mayor's directive to "get rid of" plaintiff after she complained about discriminatory behavior was retaliatory and mayor could be held individually liable); Kelley, 22 MDLR at 217 (complainant won damage award against department and individuals for unlawful retaliation because the individuals had participated in, were aware of, or could have prevented the retaliatory conduct). This same rationale applies in the context of other prohibited forms of discrimination. Bendell v. Lemax, Inc., 22 MDLR 259, 263 (2000) (company president held individually liable under ch. 151B, § 4(4A) for interfering with complainant's right to be free from unlawful discrimination when he terminated her because of her disability).
69 Rosati v. Town of Warren Bd. of Health, 19 MDLR 34, 38 (1997); Carney v. Town of Falmouth Police Department, 16 MDLR 1444, 1455-56 (1994), aff'd 17 MDLR 1280 (1995) (Full Comm'n); Morehouse, 989 F. Supp. at 63-64.
72 See Harmon v. Malden Hosp., 19 MDLR 157, 157-58 (1997), See also Murray v. Sharp Air Freight Services, Inc., 2000 WL 33170935, at *4 (Mass. Super. Ct. Dec. 5, 2000); Hope v. San Ran, Inc., 8 MDLR 1195, 1211, aff'd, 8 MDLR 1277 (1986). Cf. Hennessy v. Perico, Inc., 1999 WL 515078 at *1 (Mass. Super. Ct. May 20, 1999).
77 See, e.g., DeBarboza v. Cablevision of Boston, Inc., 1999 WL 65489, at *2 (Mass. Super. Ct. Jan. 29, 1999) (although court held that corporate defendant could be held liable as an aider and abettor, it dismissed the claim because the plaintiff failed to allege the person or persons that the corporation allegedly aided or abetted).
78 Beaupre, 50 Mass. App. Ct. at 495 n.23 (noting that the actor must be found to have the requisite intent to discriminate in order to be liable for aiding and abetting); Urrea, slip op. at 6, supra note 57; Harmon, 19 MDLR at 158. Compare Russell v. Hillcrest Educational Centers, Inc., 23 MDLR 91, 96 (2001) (aiding and abetting claim dismissed due to lack of evidence demonstrating respondent's agents had knowledge of the harasser's conduct and intended to assist the harasser in his alleged unlawful actions).
79 See, e.g., Beaupre, 50 Mass. App. Ct. at 494-95 (president and controlling shareholder of respondent company held liable as an aider and abettor for acting jointly with the respondent company in both his separate acts of sexual harassment against the complainant, which the company is deemed vicariously to have authorized him to do, and in causing the company to sanction the complainant's demotion and subsequent constructive discharge), citing Model Penal Code and Commentaries § 2.06(2) (c), (3)(a) and comments 5-6; § 2.07(6) (a) and comment 7 (1980) (which makes a person "legally accountable for any conduct he performs or causes to be performed in the name of the corporation or in its behalf to the same extent as if it were performed in his own name or behalf" and "makes certain that the corporate agent will not escape liability because all or part of his conduct is performed through or in the name of the corporation").
82 Mass. Gen. Laws ch. 151B, §3A(b)(2) & (c) (1996). A copy of the MCAD Model Sexual Harassment Policy No. 96-2 and the poster can be obtained through the MCAD. The Model Policy is accessible online at http://www.state.ma.us/mcad/harassment.html. The Commission further recommends that employers establish an anti-harassment policy that clearly prohibits harassment based on all classes protected by the statute.
83 Distribution of pornography may be part of the harassment. Bowman v. Heller, aff'd in part and vacated in part by 420 Mass. 577 (1995), 1993 WL 761159 at *7 (Mass. Super. Ct. Jul. 9, 1993), Barbetta v. Chemlawn Services Corp., 669 F. Supp. 569, 572 (W.D.N.Y. 1987).
85 Mass. Gen. Laws ch. 151B, §3A(e) provides that employers are encouraged to conduct an education and training program for new employees within one year of commencement of employment. See also Charles Walker, "An Ounce of Prevention...," MCAD Certified Discrimination Prevention Training Program, Sexual and Other Harassment Prevention Module, MCLE (2000-15-CM). In 1999, the Commission, in conjunction with the MCLE, initiated a program to train individuals to educate workforces on techniques to prevent discrimination in the workplace. A list of sexual harassment prevention trainers is available from the Commission.
89 See Harley v. Costco Wholesale Corp., 21 MDLR 87, 93-94 (1999) (employer's failure to take prompt remedial action was supported by evidence that respondent failed to adequately train its managers and supervisors in how to respond to a complaint of discrimination or harassment, rendering them ineffective in this regard). In court cases where punitive damages may be sought, evidence of training may also mitigate damages.
90 See Rounds v. Dep't. of Corrections, 19 MDLR 90, 99-100 (1997) (finding of no liability on the part of the employer which promptly assigned an "experienced special investigator" to meet with witnesses to the alleged harassing conversation).
91 It is important to have options with respect to how the employee may report a complaint of harassment, as the complaint may involve the individual whose position it is to handle sexual harassment complaints.
93 See Beldo, 20 MDLR at 107, 112 (investigation that involved one interview between the investigating supervisor and the alleged perpetrator - both of whom were friends - and no one else, not even the complainant, held to be evidence of an inadequate investigation).
96 See, e.g., Rainey v. Monsanto Co., 22 MDLR 303, 310 (2000) (employer not only took photographs of offending graffiti and painted the walls, but also increased maintenance and supervisory surveillance of the restrooms, had supervisory and management meetings with all work crew to discuss incident and to re-convey management's anti-harassment policy, and followed up with diversity consultants and continued investigations, involving the entire workforce of the division).
103 On August 7, 2002, Governor Swift signed into law chapter 223 of the Acts of 2002, which amended Mass.Gen.Laws. c.151B, §5 to change the statute of limitations from six months to 300 days. The amendment goes into effect on November 5, 2002 and applies to claims arising after that date. For all claims arising before that date, the six-month limitations period still applies.
105 See, e.g., Conroy v. Boston Edison Co., 758 F. Supp. 54, 60-61 (D. Mass. 1991), Andrews v. Arkwright Mutual Insurance Co., 423 Mass. 1021, 1022 (1996); Adams v. Mount St. Vincent Nursing Home, 19 MDLR 123, 125 (1997).
106 Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 398 (1994) (citing McConnell v. General Tel Co. of Cal., 814 F.2d 1311, 1317 (9th Cir. 1987); Wynn & Wynn v. MCAD, 431 Mass. 655, 673 (2000); DeBiase v. MBTA, 22 MDLR 271, 273-274 (2000); Soriano v. City of Lawrence Police Department, 2000 WL 1584852 at *3 (Essex Super. Ct. Oct. 23, 2000).
112 Carter v. Commissioner of Correction, 43 Mass. App. Ct. 212, 220-21 (1997). Cf Clifton v. MBTA, 2000 WL 218397 at *6 (Feb. 3, 2000); Beldo v. Univ. of Massachusetts at Boston, 20 MDLR 105, 110-111 (1998); Lynn Teachers Union, Local 1037 v. MCAD, 406 Mass. 515, 523 (1990). In contrast, where a continuing violation is not established, the complainant is limited in using the untimely events as background evidence to establish a hostile work environment, and she may not recover damages for the time-barred events. Cuddyer, 434 Mass. at 530, n.10.
119 Cuddyer, 434 Mass. at 539. The SJC has stated that this test is more favorable to the complainant and differs substantively from the federal "reveletory" standard. That standard provides that once a complainant knows, or reasonably should know, that she is being sexually harassed, the limitations clock begins to run. Id. at 537-38.
120 Cuddyer, 434 Mass. at 530 n.10 (2001).
121 Jensen v. Frank, 912 F.2d 517, 523 (1st Cir. 1990). See, e.g., Lynn Teachers Union, Local 1037, 406 Mass. at 522-523 (approving application of continuing violation rule where refusal to credit complainants for pre- resignation seniority breathed new life into discriminatory maternity leave policy).
122 GTE Products Corp. v. Stewart, 421 Mass. 22, 34 (1995), citing Alicea Rosado v. Garcia Santiago, 562 F. 2d 114, 119 (1st Cir. 1977); Holt at 375; Choukas v. Ocean Kai Restaurant, 19 MDLR 169, 171 (1997); Said v. Northeast Security, 18 MDLR 255, 259 (1996).
126 See GTE Products, 421 Mass. at 36 (employee's obligation to act reasonably includes "an obligation not to assume the worst and not to jump to conclusions too fast") (quoting Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987); Bengin v. Braintree Highlands Corp., 21 MDLR 197, 199 (1999); Kletkotka v. Carlin Combustion Technology, Inc., 21 MDLR 72, 75 (1999); Estate of Douglas McKinley v. Boston Harbor Hotel, 14 MDLR 1226, 1241 (1992).
130 Tate v. Dep't of Mental Health, 419 Mass. 356, 364-65 (1995); MacCormack v. Boston Edison Co., 423 Mass. 652, 662-6 (1996).
138 Muise v. Credit Exchange, 17 MDLR 1684, 1691-92 (1995). In fact, as described in Section VII(B) of these Guidelines, such retaliation can constitute a part of a continuing violation that relates back and includes otherwise untimely incidents of sexual harassment.
139 Monahan v. Dep't of Mental Retardation, 14 MDLR 1049, 1053 (1991), aff'd, 14 MDLR 1153 (1992) (Full Comm'n). See also Bass v. Dep't of Mental Retardation, 20 MDLR 1, 4 (1998) (retaliation claim dismissed where employer fired complainant prior to being served with a copy of her MCAD charge and employer had no other reason to know about charge).
140 Tate, 419 Mass. at 364. Causation may be inferred from proof of retaliatory intent. Complainants frequently use the three stage burden shifting model of Blare v. Husky Injection Systems, Boston, Inc., to prove retaliatory intent. Under this analysis, protected activity, adverse action, and causal nexus/proximity in time are the elements of the prima facie case, followed by the rebuttal and pretext stages. 419 Mass. 437, 441-443 (1995); see also Ruffino, 908 F. Supp. at 1044-47. A fact finder can then infer causation from proof of retaliatory intent.
144 Riggs v. Town of Oak Bluffs, 23 MDLR 306, 311 (2001). See also Bain, 424 Mass. at 765 n.4; Melnychenko 424 Mass. at 294-295 (§ 4(4A) may extend to use of termination agreements and/or waivers which interfere with employee rights under M.G.L. ch. 151B); Harmon, 19 MDLR at 157 (for guidance in interpreting § 4(4A), MCAD looks to cases under Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11H).