The Massachusetts Commission Against Discrimination (MCAD) recently published its 2024 Guidelines on Harassment in the Workplace. The 48-page version replaces the 27-page version from 2017. During the open comment period, from January 25 to March 25, 2024, AIM submitted extensive public comments. 

All employers with six or more employees must adopt a sexual harassment policy and distribute it to their employees annually. Although not required by law, the MCAD also recommends that employers adopt a general anti-harassment policy that aims to eliminate all protected class-based harassment in the workplace. 

In addition to the new guidelines, the agency has also published a three-page summary of the guidance, available here. The MCAD also reminded employers about its model sexual harassment policy and required sexual harassment poster informing employees of their rights and responsibilities under the law.  

Guidance Highlights  

The guidelines define an employee as a full-time or part-time worker, temporary worker, contract worker, minor worker, or domestic worker. Independent contractors, interns, volunteers, and those employed by immediate family members are typically not considered employees. However, labeling someone an independent contractor does not automatically exclude them from being considered an employee. 

The new guidance also highlights MCAD’s concern with harassment based on membership in a protected class, which may include either quid pro quo or hostile work environment harassment (see below for a list of protected class characteristics). 

Much of the guidance covers familiar ground for many Massachusetts employers: sexual harassment, the annual distribution of a sexual harassment policy, the importance of investigations in response to complaints, and training to prevent harassment. 

However, the guidance also dedicates a significant portion of its content (approximately 25%) to a discussion of harassment based on protected class status. The MCAD states that “it is unlawful “[f]or an employer, by himself or his agent… to discriminate against [any] individual in compensation or in terms, conditions or privileges of employment [because of their protected class] unless based upon a bona fide occupational qualification.”  

Under Massachusetts law, protected class harassment is harassment involving unwelcome or unwanted conduct directed at an employee because they belong to, or are believed to belong to, or because they are associated with a member of a protected class. The guidance defines such harassment to include inappropriate touching of a non-sexual nature, stereotyping, knowingly misgendering, or displaying offensive pictures or objects. Sometimes, an employee is harassed because they belong to or are believed to belong to more than one protected class. Under Massachusetts law, the following are protected classes:  race, color, religion, national origin, sex, gender identity, sexual orientation, genetic information, pregnancy or a pregnancy-related condition, ancestry, veteran status, military service, age (40+), and disability status.   

Examples of Protected Class Harassment 

• Quid pro quo harassment occurs when an employee is asked to tolerate discriminatory conduct to keep their job, get workplace benefits or opportunities, or avoid negative consequences.  

• Hostile work environment harassment occurs whenever discriminatory conduct based on an employee’s membership in or association with a member of a protected class creates an intimidating, hostile, humiliating, or offensive work environment that makes it harder for an employee to do their job or fully participate in the workplace.  

Harassment Outside of the Workplace
The 2024 guidelines clarify that an anti-harassment policy applies outside the workplace during non-work hours, including harassment via social media or other online platforms. The conduct must be sufficiently connected to the employee’s job or relationship with their employer. 

Preventing Harassment at Work 

Employers are required by law to adopt and annually provide their employees with a sexual harassment policy. Although not required, employers are strongly encouraged to adopt a policy against protected class harassment. The MCAD recommends employers implement a general anti-harassment policy aimed at eliminating all protected class harassment in the workplace.  

As always, an employer who knows or should know about harassment against an employee has a duty to investigate and take reasonable and appropriate action to remedy the situation. A report of harassment to anyone with managerial authority is sufficient to put the employer on notice. 

Unlike the new Equal Employment Opportunity Commission (EEOC) harassment guidance, the MCAD guidance makes it clear that the employer has a duty to investigate in all cases, regardless of the employee’s requests when reporting the harassment. Failure to investigate and take reasonable steps to stop the harassment may lead to a liability finding against the employer. If harassment is confirmed, the employer must promptly stop it and prevent future incidents.  

Retaliation 

Retaliation is a significant concern for the MCAD, which has received the highest complaints in the last three years. Employers must prevent retaliation against anyone who files a complaint or cooperates in an investigation. Unlawful retaliation includes any conduct that would discourage a reasonable person from making or supporting a charge of discrimination. Remedies for proven harassment under M.G.L. c. 151B may include compensation for emotional distress or lost wages, civil penalties, employer and individual training, or other affirmative relief. 

Resources 

AIM HR Solutions will hold a webinar on the new EEOC guidance on harassment later this summer. If you want to learn more about this webinar when it becomes available, email kmcgraw@aimhrsolutions.com and we will put you on the waiting list.  

The MCAD strongly encourages organizations to prevent workplace harassment and discrimination through training. AIM HR Solutions’ dynamic training sessions equip supervisors and employees to handle complaints and foster a safe, inclusive work environment. Contact us for harassment prevention training – show your commitment to a respectful workplace, reduce liabilities, and boost employee morale.  

Any AIM member interested in discussing this or any other HR-related issue may contact the AIM helpline at 1-800-470-6277 or email us at helpline@aimnet.org.