Sexual Harassment Difficult to Define

Q: I feel that I am being sexually harassed at work and understand there is a new sexual harassment law in Massachusetts. Can you explain it and define sexual harassment?

A: It should first be noted, the new law, which is now over a year old, does not change the definition of sexual harassment. Sexual harassment has been and remains unlawful in the workforce.

The relatively new law only mandates that all Massachusetts employers, employment agencies and labor organizations with six or more workers have a specific sex-harassment policy in place. The legislature enacted this law to promote a workplace free from sexual harassment.

As a result, every employer with six or more workers must adopt a written policy against sexual harassment. Although the new law mandates specific minimum requirements, generally, policies will have statements noting: sexual harassment is unlawful; descriptions and examples; range of consequences for employees who are found to have committed sexual harassment; and the process for filing complaints.

This law further requires that employers provide employees an individual, printed copy of the employer’s policy against sexual harassment annually to all employees. New employees must be provided such a copy at the start of employment. Finally, the law encourages employers to conduct sexual harassment education and training programs.

What actually constitutes sexual harassment in the workplace is a difficult question. Generally, there are two types of sexual harassment: quid pro quo sexual harassment and hostile environment sexual harassment.

Quid pro quo sexual harassment involves unwelcome sexual advances. Sexual advances would include a request for a sexual favor or other verbal or physical conduct of a sexual nature initiated by a supervisor or other individual who has managerial power over the employee. The result of the employee’s refusal to engage in the unwelcome conduct may cause a negative effect upon the compensation, terms, conditions, or privileges of employment.

Hostile environment sexual harassment involves the creation of a work environment that condones sexual harassment. Sexual harassment in this context again involves sexual advances which include a request for a sexual favor, or other verbal or physical conduct of a sexual nature. Here the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. The complaining employee need not lose any tangible job benefits as a result of the harassment.

The Massachusetts Commission Against Discrimination (MCAD) is the state agency which investigates and enforces violations of fair employment practices such as sexual harassment. The MCAD is empowered to receive, initiate and investigate complaints of sexual harassment. In determining whether an environment is hostile the MCAD will look at (1) whether the conduct was verbal or physical or both; (2) how frequently it was repeated; (3) whether the conduct was hostile or patently offensive; (4) whether the alleged harasser was a co-worker or supervisor; (5) whether others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual.

The MCAD will consider all the factors equally. In essence, an assessment is made based upon the total circumstances. If you believe you are a victim of sexual harassment you should contact the MCAD or a local attorney. Generally, with few exceptions, a complaint of sexual harassment must be filed with the MCAD within six months of the alleged harassment.

Finally, it should be noted that Massachusetts takes the position that harassment is gender neutral. That is, it can occur when the same gender harasses the same gender, or the opposite gender. You may recall the movie Disclosure where a female supervisor (Demi Moore) sexually harassed a male subordinate (Michael Douglas). That movie was an example of sexual harassment that many people did not or could not imagine. The movie helped open many eyes to the fact that sexual harassment is not a one-way street of the dominate male supervisor verses the subordinate female.
Today, sexual harassment claims come in an array of circumstances. Employers must take precautions to inform and educate their employees of what constitutes sexual harassment. Otherwise an employer can find himself in expensive litigation.