Massachusetts law about sexual harassment

Massachusetts laws

MGL c. 151B Fair employment practices act

• § 1: Sexual harassment is sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

a) submission or rejection thereof become the basis for employment decisions or a term or condition of employment. (Quid pro quo) or b) it 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. (Hostile work environment)

MGL c. 12 §§ 11H, 11I Massachusetts civil rights act

MGL c. 93 § 102 Massachusetts equal rights act

MGL c. 214 § 1C Superior Court jurisdiction in sexual harassment cases

Massachusetts regulations and policies

804 CMR 1 MCAD rules of procedure

804 CMR 3.01(4)(a)(4) MCAD discrimination in employment

Model sexual harassment policy (MCAD Policy, revised 2017-09-16)

Federal laws and regulations

Federal laws

42 USC 2000e et seq. Title VII of the Civil Rights Act of 1964

Federal regulations

29 CFR 1604.11 Sexual Harassment

Selected Massachusetts case law

College-Town, Division of Interco Inc. v. Massachusetts Commission Against Discrimination, 400 Mass. 156 (1987) 
The court established a strict liability rule whereby the employer is liable for acts of its supervisory personnel.

Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001)
Based on the continuing violation doctrine, claim was not barred by the 6 month statute of limitation period under M.G.L. chap. 151B.

Green v. Wyman-Gordon Co., 422 Mass. 551 (1996)
The remedies and procedures under M.G.L. chap. 151B are exclusive and bar the plaintiff's claim under M.G.L. chap. 214 sec. 1C.

Lowery v. Klemm, 446 Mass. 572 (2006)
The court held that MGL c. 214 s. 1C "does not apply to volunteers, although volunteers retain their common-law rights regarding sexual harassment."

Melnychenko v. 84 Lumber Co., 424 Mass. 285 (1997)
The court concluded that neither the gender or sexual orientation of perpetrators or victims are an element of a sexual harassment claim under M.G.L. chap. 151B.

O'Connell v. Chasdi, 400 Mass. 686 (1987)
The court held that "sexual harassment accomplished by threats, intimidation or coercion constitutes precisely the kind of conduct" prohibited by the Massachusetts Civil Rights Act.

Selected federal case law

Burlington Industries v. Ellerth, 524 US 742 (1998)
"An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence"

Burns v. Johnson, 829 F.3d 1 (2016)
A plaintiff need not provide direct evidence, but only sufficient circumstantial evidence to show conduct was severe and pervasive under Title VII for sexual discrimination and harassment.

Faragher v. City of Boca Raton, 524 US 775 (1998)
A companion case to Burlington, above. "We hold that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of a plaintiff victim."

Harris v. Forklift Systems Inc., 510 US 17 (1993)
The court held that if conduct in the workplace is so discriminatorily hostile or abusive, Title VII is violated regardless of whether the plaintiff suffered psychological harm. All of the circumstances must be examined to determine whether an environment is hostile or abusive.

Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986)
Sexual harassment leading to non-economic injury is a violation of Title VII.

Oncale v. Sundowner Offshore Services, 523 US 75 (1998)
Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.

Web sources

About sexual harassment in the workplace, Mass. Commission Against Discrimination, including guidelines for complying with MGL chapter 151B.

 

Enforcement guidance: vicarious employer liability for unlawful harassment by supervisors, Equal Employment Opportunity Commission

Individual liability of supervisors for sexual harassment under Title VII, Scott J. Connolly, BC Law Review, v.42, no. 2, 2001.

Questions and answers for small employers on employer liability for harassment by supervisors, Equal Employment Opportunity Commission

Your rights in the workplace, Nolo, 2018. 
Chapter 8: Sexual harassment "provides information about sexual harassment in the workplace such as the effects of sexual harassment on employees, which include penalties for retaliation as well as personal injuries, and sexual and illegal harassment under state and federal laws." Requires library card for access.

Print sources

Drafting employment documents in Massachusetts, MCLE, updated Feb. 2019. 
Investigating sexual harassment complaints (ch. 15) and Resolving sexual harassment complaints (ch. 16) 

Employment discrimination, by Lex Larson, Matthew Bender, loose-leaf, chap. 46.

"Joseph Oncale v. Sundowner Offshore Services, Inc.: Redefining Workplace Sexual Harassment to Include Same-Sex Sexual Harassment and the Effect on Employers," 34 New England Law Review 941 (2000).

Massachusetts employment law, MCLE, loose-leaf.
Volume 1, Chapters 11, 12, 13.

Massachusetts practice, vol. 45 (Employment law) Thomson Reuters, with supplement, sec. 8.27 through 8:30.

Preventing & handling sexual harassment in the #metoo era, MCLE, 2019. 

Sexual harassment and retaliation : a practical handbook for plaintiff and defense, ABA, 2019. 

"When is Supervisor's or Coemployee's Hostile Environment Sexual Harassment Imputable to Employer Under State Law," 94 ALR5th 1.

Last updated:	September 30, 2020