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)
- § 3A Employers' policies against sexual harassment; preparation of model policy; education and training programs
MGL c.12, § 11H Massachusetts civil rights act
MGL c.12, § 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
9 USC § 401-402 Disputes involving sexual assault and sexual harassment
The law allows employees subject to pre-dispute mandatory arbitration agreements to pursue in court their claims related to sexual assault or sexual harassment.
42 USC 2000e et seq. Title VII of the Civil Rights Act of 1964
29 CFR 1604.11 Sexual harassment
Executive Order 14062-2022, January 26, 2022.
Adding Sexual Harassment to the Military Manual for Courts Martial.
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 under Massachusetts law 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 MGL c. 151B.
Green v. Wyman-Gordon Co., 422 Mass. 551 (1996)
The remedies and procedures under MGL c. 151B are exclusive and bar the plaintiff's claim under MGL c. 214, § 1C. “…plaintiff's failure to exhaust administrative requirements (MCAD) required by employment discrimination statutes precluded her from bringing sexual harassment suit in Superior Court.”
Gyulakian v. Lexus of Watertown, Inc., & another, 475 Mass. 290 (2016)
A “sexually hostile or offensive work environment” is one that is pervaded by harassment or abuse, resulting in intimidation, humiliation, and stigmatization that poses a formidable barrier to the plaintiff's full participation in the workplace.
Lowery v. Klemm, 446 Mass. 572 (2006)
The court held that MGL c. 214, § 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 MGL c. 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.
Stonehill College v. Massachusetts Commission Against Discrimination, 441 Mass. 549 (2004)
The court reversed policy allowing employers the right to a jury trial in state discrimination proceedings. Cases that stayed with the MCAD could not be assessed for punitive damages, but the employer could be fined.
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.
About sexual harassment in the workplace, Mass. Commission Against Discrimination.
Includes 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.
Drafting employment documents in Massachusetts, 4th ed., MCLE, Loose-leaf, Chapter 15 and 16.
Employment discrimination, by Lex Larson, Matthew Bender, loose-leaf, chap. 46.
Employment discrimination in Massachusetts, 3rd ed., MCLE, 2022, Chapter 8.
Discusses employer liability for supervisor’s conduct under Mass and Federal law.
Employment law, 3rd. (Mass Practice v.45), Thomson Reuters, 2016 with supplement. Sections 8.27-8:30.
Massachusetts employment law, 5th ed., MCLE, loose-leaf, Chapters 11, 12.
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.
Your rights in the workplace by Sachi Barreiro, Nolo, 2018.
|Last updated:||March 17, 2023|