Sexual Harassment

Sexual harassment in the workplace is prohibited by the Massachusetts Fair Employment Practices Act and Title VII of the Civil Rights Act of 1964. There are two types sexual harassment: “quid pro quo” and “hostile work environment,” each with its own legal elements. In general, “quid pro quo” sexual harassment occurs where an employer requires an employee to exchange keeping her job, or some other benefit of employment, for sexual favors. Hostile work environment sexual harassment, in contrast, does not affect the economic benefits of employment but creates a sexually-charged, offensive, or abusive work environment. Both claims stand on their own and may occur independent of the other.

To successfully assert a claim for “quid pro quo” sexual harassment, an employee must establish that:

1. She or he was subject to conduct of a sexual nature, which could include sexual advances;
2. The sexual conduct in question was unwelcome;
3. She or he rejected the sexual advances; and
4. After rejecting such advances, the terms or conditions of his or her employment were adversely affected.

An employee who submits to sexual advances may still assert a viable claim for “quid pro quo” sexual harassment where she did so to avoid being fired, or in reasonable fear of some other adverse employment action including demotion. The legal elements required to satisfy a hostile work environment sexual harassment claim differ. To prevail on such a claim, an employee must show:

1. She was subjected to conduct of a sexual nature;
2. Such conduct was unwelcome;
3. Such conduct created an intimidating, hostile, humiliating, or sexually offensive work environment; and
4. Such conduct unreasonably interfered with the employee’s work performance or otherwise altered the employment.

Both types of sexual harassment claims carry the same remedies, including compensatory damages in the form of back pay, future loss of earnings, plus emotional distress damages; punitive damages, the purpose of which is to punish the employer; and attorneys’ fees and costs.

Several legal opinions paved the way for the rights that employees have today to be free from sexual harassment in the workplace. In Meritor Savings Bank v. Vinson, for example, the Supreme Court recognized that a hostile work environment is a form of sexual harassment in violation of Title VII, even absent an economic effect on the worker’s employment.

Later, in Harris v. Forklift Systems, the Supreme Court held that an employee need not suffer a psychological injury in order to state a viable hostile work environment sexual harassment claim, as a long as a reasonable person would perceive the environment as offensive or abusive:

Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.

The Massachusetts Supreme Judicial Court has also issued landmark decisions interpreting sexual harassment under the Fair Employment Practices Act. In College-Town v. MCAD, for instance, the SJC found that the Fair Employment Practices Act likewise prohibits both “quid pro quo” and hostile work environment sexual harassment. The College-Town decision also made clear that an employer is strictly liable for the unlawful conduct of a supervisor, upon whom the employer confers authority.

Notably, the College-Town precedent is more advantageous to employees than the standard set forth in the Faragher & Ellerth decisions interpreting Title VII. In those decisions, the Supreme Court held that an employer may not be held liable for the conduct of a supervisor who engages in sexual harassment by showing that it exercised reasonable care to prevent the conduct and acted quickly to prevent and correct the harassing behavior, subject to certain exceptions.

The Supreme Judicial Court’s ruling in Cuddyer v. Stop & Shop is also significant, where the court once again departed from federal precedent interpreting Title VII to create a more favorable rule for employees under the Fair Employment Practices Act. Specifically, the SJC held that victims of hostile work environment sexual harassment may use the continuing violations doctrine to file a timely claim. Under this doctrine, a claim is timely where at least one incident that substantially relates to earlier incidents of abuse occurred within the statute of limitations period, which “anchors all related incidents, thereby making the entirety of the claim for discriminatory conduct timely.”

Nevertheless, the statute of limitations to file a sexual harassment claim is relatively short and exceptions, like the continuing violations doctrine, do not always apply. It is best to err on the side of caution and file a complaint as soon as due diligence has been completed. Failing to meet the statute of limitations deadline will forever bar an employee from recovering any damages that resulted from the discriminatory conduct.

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