Massachusetts Sexual Harassment Law
Are you being victimized by the sexual misconduct of a supervisor or coworker at work in Massachusetts? Massachusetts law is designed to immediately stop this behavior and, in many instances, to compensate you for the harm that you have incurred. Not only does Massachusetts law allow you to recover damages when you have been victimized by sexual harassment, it also protects you from retaliation when you have resisted sexual harassment in the workplace.
You have a right to be free from unwanted sexual conduct in the workplace. Harriman Law represents victims of sexual harassment throughout Massachusetts – in all 14 counties. Contact our office today for a free consultation.
Sexual Harassment in Massachusetts
Massachusetts law (Massachusetts General Laws Chapter 151B) recognizes two types of workplace sexual harassment: “quid pro quo” sexual harassment and sexual harassment on the basis of a “hostile work environment.”
What is quid pro quo sexual harassment?
In Massachusetts, quid pro quo sexual harassment most often presents with a request for sexual favors in exchange for some workplace benefit or, in the alternative, an absence of punishment. The promise of a job, a promotion, a raise, extra vacation time, or other tangible employment benefits for sexual favors is the most common presentation of quid pro quo sexual harassment. Implied threats, however, can also be quid pro quo sexual harassment (threatened termination, demotion, reduction in wages, etc.), when associated with requests for sexual favors.
How do I know if I have a claim for quid pro quo sexual harassment?
To establish a claim for quid pro quo sexual harassment in Massachusetts, you have to show that sexual conduct occurred (advances, requests for favors, or otherwise), that it was unwelcomed, that you rejected the sexual conduct, and that your employment was adversely affected because of it.
A common misconception is that termination of your employment following resistance to sexual advances is the only way to show that your employment was adversely affected. Termination, although the most serious adverse employment action, is not the only way your employment may be affected in order to give rise to a quid pro quo sexual harassment claim. Following resistance to sexual advances, you may lose shifts at work, suffer a demotion, be denied a well-earned promotion, incur an unjustified negative performance review, endure hostile treatment, or suffer ongoing targeting and harassment. Each of these may be a sufficient adverse action to demonstrate quid pro quo sexual harassment in Massachusetts.
Generally speaking, the person engaging in quid pro quo sexual harassment must have some measure of authority or control over the terms and conditions of your employment (a supervisor, for example) in order to be able to make an implied “quid pro quo” proposition.
What are some examples of quid pro quo sexual harassment?
- Your supervisor makes direct requests for sexual favors in exchange for tangible employment benefits including preferential treatment, increased wages, a new job opportunity, or more vacation.
- You are interviewing with a new employer and the employer suggests or implies that a sexual relationship is a prerequisite to getting the job.
- Your supervisor touches you in an unwelcomed, sexual manner.
- Your supervisor mentions that sex (or any sexually-themed conduct) would make it more likely for you to get a promotion or an increase in pay.
- You suffered adverse effects at work because you turned down your supervisor’s invitation to go on a date or declined other sexual advances.
What is hostile work environment sexual harassment?
Another type of sexual harassment in Massachusetts is referred to as “hostile work environment” sexual harassment. Whereas quid pro quo sexual harassment usually involves a direct proposition of sexual favors in exchange for benefits, hostile work environment sexual harassment occurs when unwelcomed conduct that is sexual in nature creates a hostile, humiliating, or sexually offensive work environment. Although hostile work environment sexual harassment can be less direct than quid pro quo sexual harassment, it is still prohibited and actionable in Massachusetts, and it is your employer’s statutory duty and obligation to investigate and eliminate this environment once you report it.
How do I know if I have a claim of hostile work environment sexual harassment?
In order for sexual conduct in the Massachusetts workplace to reach an actionable level as a hostile work environment, the sexual conduct must be hostile, intimidating, or humiliating from both an objective and subjective perspective. The sexual conduct must also be either severe or pervasive.
When conduct is subjectively offensive, it means that you yourself believe that the behavior is offensive and that you did not welcome it. In order for sexual conduct to be objectively offensive, it must be conduct that an average person would find offensive if they were in your shoes.
Severe sexual conduct occurs when an incident is so hostile or so offensive in nature that it alone establishes a hostile work environment. In Massachusetts, conduct of a forceful nature such as sexual groping, grabbing, or other direct violations of physical space are common examples of conduct so severe that it arguably only needs to happen once for a sexually hostile work environment to exist. Even purely verbal sexual harassment, if sufficiently offensive, can rise to the level of severe enough conduct to have created a sexually hostile work environment.
On the other hand, pervasive sexual conduct in the workplace is sexual conduct that is repeated and ongoing over a period of time, is unwelcomed, and is generally directed toward you individually. Pervasive sexual conduct often involves both physical and verbal conduct such as non-permissive touching, sexualized comments about dress and appearance, sexually suggestive remarks, lewd comments, inappropriate text messages or emails, or sexual requests and jokes.
Determining Employer Liability for Sexual Harassment in Massachusetts
Generally speaking, your employer is liable for the conduct of its supervisors and/or is liable for the conduct of your co-workers when it knew or should have known of their behavior and failed to take appropriate remedial action to prevent its recurrence.
Your employer is liable for the conduct of your supervisor.
In Massachusetts, your employer is liable for the sexual harassment perpetrated upon you by your supervisor. This liability is strict and attaches even if your employer did not know about the harassment or took steps to remediate the harassment after you reported it.
If your harasser is not formally your supervisor and lacks actual authority, your employer can still be held liable. If your harasser holds himself or herself out to you as having authority over you and you reasonably understand it to be true, then your employer is liable for your harasser’s actions. Moreover, the supervisor need not be your direct supervisor for liability to attach. What matters most is whether your employer has conferred some supervisory or management authority to your harasser.
Your employer’s supervisors have a higher responsibility than the average employee to make sure that their conduct is appropriate. If your supervisor is sexually harassing you, Massachusetts law empowers you to hold your employer responsible for it.
Your employer may be liable for the actions of your co-workers.
In Massachusetts, your employer may also be liable for the sexual harassment perpetrated upon you by your non-supervisory co-workers. When it comes to your co-workers, your employer is liable for the sexual harassment you experience when it knew or should have known of the conduct and failed to act to prevent the sexually charged conduct from occurring.
In Massachusetts, your employer is obligated to take prompt, effective and reasonable remedial action when you bring a complaint of sexual harassment about a co-worker. Your employer has a duty to investigate your claim in a fair and quick manner and to ensure that the sexually harassing behavior stops and does not occur again.
Remedial action by your employer can take a number of different forms. Common examples of remedial action include halting any ongoing harassment, taking appropriate disciplinary action against the harasser, taking steps to prevent future harassment, and making you whole by compensating any lost employment benefits or opportunities.
Workplace Retaliation in Massachusetts
If you resist or complain about sexual harassment in Massachusetts, the law to protects you from retaliation. You cannot be punished or disadvantaged due to your complaints about workplace sexual harassment.
A claim for retaliation requires that you first demonstrate that you engaged in “protected activity.” That is, you must show that you complained about the sexual harassment or reported it to your employer. You must also show that your employer knew of the protected activity and that you were then punished or treated adversely because of the protected activity.
Retaliation that follows protected activity is a very serious issue. This unlawful punishment can manifest itself in many ways including demotions, termination, cuts in hours, reductions in benefits, diminished vacation time, disparate treatment, or even ongoing hostile treatment.
What constitutes “protected activity” in Massachusetts?
If, in response to unwanted sexual conduct in the workplace, you engage in any of the following types of responses, you have engaged in protected activity, following which the law protects you from retaliation by your employer:
- Complaining to your supervisor about sexual conduct
- Reporting offensive sexual conduct to Human Resources
- Speaking to a lawyer about the conduct
- Speaking to anyone at the Massachusetts Commission Against Discrimination about the conduct
- Filing a sexual harassment claim
- Filing a union grievance
- Filing a complaint in court
- Filing any internal complaints of sexual harassment at your place of employment
- Asking the person sexually harassing you to stop
Anything that you do to oppose sexual harassment in the workplace may be sufficient to rise to the level of protected activity. If you have been sexually harassed in Massachusetts and you believe that you were retaliated against for engaging in some kind of protected activity, you may very well have a separate actionable retaliation claim.
What does retaliation look like in Massachusetts?
Termination is, of course, the most severe example of prohibited retaliation. Retaliation may also take the form of a denied promotion, a transfer to a less favorable position, or even a decrease in compensation or other employment benefits.
Further, if your employer or supervisor has threatened or intimidated you because of your resistance to sexual harassment, you may have an actionable claim for retaliation.
Massachusetts law and the Massachusetts Commission Against Discrimination take retaliation very seriously. Prohibitions against retaliation exist in order to protect your right to safely bring a sexual harassment claim.
Filing a Sexual Harassment Complaint
In Massachusetts, you must file a sexual harassment claim within 300 days of the date the sexual harassment occurred. While there are exceptions to this strict rule in certain circumstances, the safest way to protect your claim is to meet with a Massachusetts sexual harassment lawyer and file the claim well in advance of this 300-day deadline.