Sexual Harassment FAQ

1. Sexual Harassment Laws 2. Posting & Training Requirements 3. Employer’s Duty to Investigate 4. Relevance of Workplace Attire 5. What should I do?

1. Is sexual harassment in the workplace illegal?

   Yes. Sexual harassment is prohibited under both the Massachusetts Fair Employment Practices Act and Title VII. Under Massachusetts law, the Supreme Judicial Court in College-Town v. MCAD made clear that sexual harassment constitutes discrimination in violation of M.G.L. c. 151B, §4(1). In addition, M.G.L. c. 214, §1C specifically forbids sexual harassment and grants the Massachusetts Superior Courts jurisdiction to hear such cases and enforce awards. As detailed here, there are two types of sexual harassment: hostile work environment and quid pro quo.

2. What are my employer’s obligations to promote a workplace free from sexual harassment?

   Under Massachusetts law, specifically M.G.L. c. 151B, §3A, employers are required to adopt a policy against sexual harassment that includes “a statement of the range of consequences for employees who are found to have committed sexual harassment” and that details a process for reporting sexual harassment. In addition, Massachusetts employers must provide new employees with it’s sexual harassment policy and provide the same to all employees annually. Finally, Massachusetts law also encourages companies to conduct education and training programs for new employees, especially those with supervisory and managerial authority, within one year of commencement of employment.

3. Is my employer required to investigate sexual harassment?

   Yes. In Chapin v. University of Massachusetts at Lowell, the District Court of Massachusetts observed that a “deaf ear from management may contribute to and encourage the hostility of the workplace, creating an impression that employees may engage in sexual harassment or discrimination with impunity.” In doing so, the court concluded that a supervisory employee’s failure to investigate known sexual harassment in the workplace is actionable as a separate violation of aiding and abetting discrimination under M.G.L. c. 151B, §4(5). In addition, as the College-Town v. MCAD decision established, an employer’s failure to take adequate remedial measures in response to sexual harassment concerns, by itself, violates the Massachusetts Fair Employment Practices Act.

4. Can what I wear to work be used against me?

   The ruling in Dahms v. Cognex, in which the Supreme Judicial Court upheld a trial court’s decision to admit evidence regarding an employee’s attire, has been sensationalized. At trial, the defense relied on the employee’s mode of dress (which included costumes at company Halloween parties), speech, and conduct to defeat her sexual harassment claim. In upholding the admission of such evidence, the Court stated that “evidence of a plaintiff’s dress and conduct is not relevant per se; judges must take care to ensure that evidence of that nature is allowed only when its probative value outweighs the prejudicial impact to the plaintiff.” In doing so, the SJC noted that plaintiff’s counsel was the first to reference such evidence at trial, introducing several photographs of her at Halloween parties. Although the Dahms decision is by no means employee-friendly, it certainly does not allow employers to turn a blind eye to sexual harassment in the workplace simply because the target of such harassment is perceived to dress provocatively.

5. What should I do if I experience sexual harassment?

   To ensure that your interests are protected, contact an attorney experienced with handling sexual harassment claims on behalf of employees. In representing victims of sexual harassment, we thoroughly review all pertinent facts and gather evidence, provide ongoing advice during any company investigation that may follow, and develop a strategy to accomplish your goals. When faced with a report of sexual harassment, an employer will rely on it’s own team of lawyers who, among other things, will attempt to minimize the company’s liability – often times at the victim’s expense.