The Massachusetts sexual harassment law has been in effect for 27 years. The start of the year is a good time to revisit the Massachusetts law and remind employers of the law’s requirements.

Chapter 151B prohibits many forms of discrimination, including sex discrimination. Sexual harassment is a form of sex discrimination and is specifically prohibited in employment in Section 4 (16A) of chapter 151B. The Massachusetts Commission Against Discrimination (MCAD) guidelines provide far more detail on the law against sexual harassment.

Six or more employees

The Massachusetts anti-discrimination law, including the prohibition against sexual harassment, applies to employers with six or more employees – meaning nearly every employer in the commonwealth. The law is enforced by the Massachusetts Commission Against Discrimination (MCAD), an independent agency within state government established to accept and adjudicate discrimination claims, including allegations of sexual harassment.

The MCAD has the authority to grant financial awards that may run into the tens of thousands of dollars, and occasionally more. While sexual harassment complaints at the MCAD are relatively few in number, approximately 7% of all the claims filed according to the MCAD’s most recent annual report, decisions awarding $10,000-$25,000 coupled with mandatory training requirements regularly occur.

The Massachusetts Supreme Judicial Court (SJC) has ruled that employees may sue employers of fewer than six employees for employment discrimination under the Massachusetts Equal Rights Act (MERA). The SJC stated that although Chapter 151B only applies to employers of six or more employees, the Legislature intended to create an alternative avenue for relief under MERA.

Mandatory Policy

One of the more important aspects of the sexual harassment law is the requirement that all covered employers have a sexual-harassment policy in place (see Section 3A of MGL chapter 151B). The policy must be issued to all employees at the time of hire and annually thereafter.

Employers should require written confirmation from employees, either in person or electronically, and retain proof of it. While providing employees with a policy does not serve as a shield against harassment lawsuits, it does provide employers with proof that employees were aware of their rights.

Unless your company reissues its handbook annually, don’t rely on the policy in your handbook as proof that it was reissued to your employees each year since the law is explicit that the policy must be re-issued to your employees annually. Be sure that you check the version in your handbook to confirm that it is up to date. Employers often find this is a problem if they do not regularly update their handbooks.

Employers should also make sure that they have the current version of the sexual harassment policy. The policy is available at AIM’s online resource center at www.aimnet.org – click on the on-line resource center. You must be a member to access this service.

Take a few minutes to review your policy and make any necessary updates.

A mistake we see occasionally when reviewing policies prior to presenting harassment training or during handbook reviews is outdated policies. Two common examples are referring to a six-month statute of limitations for filing a claim with the MCAD or having the wrong contact names for filing internal complaints. The statute of limitations is now 300 days. Providing employees with outdated information about their rights could come back to haunt you if a claim is ever filed. While naming the wrong person(s) may not be such a big problem, having outdated contact information may raise the question of how frequently you review and reissue your policy.

Training

Employers may not know about a sexual harassment situation until it has been festering for a long period of time, at which time a complaint is filed. The law explicitly encourages employers to provide employees, managers and supervisors with education and training about sexual harassment as defined in the law and employees’ remedies if they want to file a complaint.

Taking the time to train your employees about your policy and their rights under the law enables employees to understand their rights and responsibilities and may encourage them to come forward sooner rather than later.

Investigations

While most employees initially complain to their direct supervisor about a real or potential situation, the law makes it clear that the policy must include the name and contact information of a person to receive complaints. While the law says person or persons, the MCAD sexual harassment guidelines strongly encourage employers to have two persons to whom a report can be made, ideally one of each gender.

The employer must investigate any complaint as quickly as possible to determine what, if anything, occurred and what action, if any, it should take. According to the MCAD guidelines, the investigation must be kept as confidential as possible. The law and policy also make it clear that any act of retaliation against an employee who files a complaint or a fellow employee who provides information about a complaint is a violation of the law and will be treated just as seriously as the original complaint.

Employers must train their supervisors/managers in how to respond to a complaint since they are likely to be the first members of management to observe or learn about the harassment. A quick internal response often means an opportunity to address the problem and solve it quickly, long before anyone begins to think about litigation or big financial awards.

The employer may be held liable under Massachusetts law for the harassing actions of its supervisors and managers regardless of whether the employer knows of the conduct. The courts have imposed this strict liability standard because managers and supervisors are conferred with substantial authority over subordinates and are thus considered agents of the employer. Supervisors and managers may also be held individually liable for their actions in violation of company policy.

Final thoughts

To prevent sexual harassment in your workplace and to provide a stronger defense in the event of a claim, employers should:

• Have a current sexual harassment policy in place.
• Train your employees on what sexual harassment is and what they can do about it.
• Train your supervisors on what to do when they receive a complaint and how they can limit their individual liability.
• Be prepared to investigate and respond to a complaint (if warranted by the facts) when you learn about it.

Although many years have passed since the sexual harassment law took effect, the law and the required policy remain a vital part of nearly every Massachusetts workplace. Employers must be aware of the law and follow its requirements to minimize their risk of being one more MCAD statistic.

While Massachusetts was one of the first states in the nation to pass such a law when it was adopted in 1996, more than 40 states now have some version of a sexual harassment law, meaning employers with employees in multiple states must be aware of each state’s particular requirements.

AIM members with questions about workplace harassment in Massachusetts or the need for training may call the AIM Employer Hotline at 1-800-470-6277.