Earlier this year, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on enforcing anti-discrimination laws regarding workplace harassment claims.  The guidance applies to all employers with 15 or more employees and includes many updates reflective of developments in the law and societal changes. For example, it expands the list of protected characteristics to include sexual orientation and transgender status and provides examples of harassment to include interactions on social media. The guidance also offers strong recommendations for preventing harassment.  

Importance of Harassment Prevention 

The importance of an employer’s efforts to prevent harassment cannot be overstated. Often, an employer can defend against a claim by demonstrating proactive measures to prevent harassment. For example, under federal law, when a supervisor is alleged to have harassed a subordinate, the employer can avoid liability if it can show that the employer has exercised reasonable care to prevent harassment, and that the employee failed to take advantage of opportunities to correct the harassment.  A supervisor is defined in the guidance as anyone who can “recommend or otherwise substantially influence” tangible employment actions, even if they don’t make the final decision. This affirmative defense, known as the Faragher-Ellerth defense, was established by the US Supreme Court in 1998.  Note that the defense is unavailable to the employer if the employee suffered an adverse employment action because of the harassment (including termination and other negative changes in employment). 

Steps for Employers to Prevent Harassment 

The EEOC Guidance does not specify the required steps for an employer to succeed in its defense, but the guidance indicates that an employer may prevail if it has: 

• Adopted a policy against workplace harassment; 

• Established a process for reporting harassment;  

• Provided training to ensure employees understand their rights and 

• Monitored the workplace to ensure compliance with the anti-harassment policy. 

Massachusetts Law on Harassment 

Massachusetts law, however, does not offer a similar defense strategy.  There is a strict liability standard for employer liability when a supervisor is the alleged harasser.  Massachusetts courts have also broadened the definition of “supervisor” beyond the EEOC’s definition to include anyone with a “modicum of authority” over the employee. For example, in a 2021 federal court case applying Massachusetts law to a harassment claim, a judge working for the Massachusetts Trial Court was deemed a supervisor of a social worker who provided services to the court, even though they did not work for the same employer.  If a plaintiff can prove that supervisory harassment occurred, the employer is liable, as the supervisor is seen as an agent of the employer.  Even further evidence of Massachusetts’ strong commitment to protect employees is that courts have expanded the definition of supervisory harassment to include a supervisor’s failure to protect a subordinate employee from harassment.   

MCAD Enforcement Guidelines 

The Massachusetts Commission Against Discrimination (MCAD) also recently issued new enforcement guidelines on workplace harassment, applicable to Massachusetts employers of six or more employees.  The MCAD guidelines strongly encourage employers to follow the steps recommended in the EEOC guidance. Massachusetts law requires all employers of six or more employees to adopt a sexual harassment policy and to distribute the policy to new employees upon hire and at least annually to all employees.  The new guidelines also emphasize the importance of harassment training for employees and managers, which is consistent with EEOC recommendations.  

Takeaway for Employers 

Given that the EEOC and the MCAD are likely to arbitrate harassment claims in Massachusetts, employers should make every effort to heed their clear message on prevention. Not only will it help promote a workplace that is inclusive and welcoming to all, but it may also provide a defense in the event of a harassment claim.  

Additional Resources 

AIM Members: Have further questions about this? Contact the AIM team via the helpline at 1-800-470-6277 or at helpline@aimnet.org.  

For information about AIM HR Solutions’ services, including anti-harassment policy development and training, contact the AIM HR Solutions team at HRInfo@AIMHRSolutions.com or visit our website at www.AIMHRSolutions.com. 

Other helpful links:  

• Podcast: Putting Sexual Harassment and Discrimination in the HR Spotlight 

• Training: Workplace Harassment and Discrimination Prevention for Supervisors 
• Training: An Employees Guide to Workplace Harassment and Discrimination