The same law that governs discrimination in the workplace also governs sexual harassment in the workplace. Before filing suit, you must first make a claim with the Massachusetts Commission Against Discrimination (MCAD). Such a claim for harassment (or any other discrimination claim) must by filed with the MCAD within 300 days of the harassment; otherwise you will be barred from ever bringing a claim through the MCAD as well as a lawsuit in superior court. If you are not sure how to do this yourself, you should immediately consult with a lawyer for assistance. You can also contact the MCAD directly through their website at http://www.mass.gov/mcad/.
What is harassment?
Harassment can be in two forms: 1) where continued employment or promotion is dependent upon the gratification of sexual favors, and 2) where the sexually overt conduct of a fellow employee, supervisor, or employer makes it very difficult to perform everyday job functions. The first kind of harassment, called quid pro quo, is usually the easier of the two to prove. The second kind of harassment, commonly referred to as a hostile work environment claim, can be a bit more difficult since a trier of fact (such as a jury) must be convinced that the conduct was of the kind under which no reasonable person could perform their work.
Being asked on a date is not sexual harassment. Typically an isolated incident is not enough, unless it is particularly extreme. For the work environment to be considered hostile, there is usually a continued pattern of inappropriate conduct. The more overt and shocking to the conscience, the shorter the duration of time needed.
What should or can I do if I am a victim of sexual harassment?
Report it, in writing, and dated. You can go to a supervisor, or, if the problem is with a supervisor, someone in human resources, management, or ownership that is in a position of authority to take action. Once the company is notified of the problem, it is their responsibility to investigate and take action to prevent the harassment from continuing. Failure to do so can result in legal liability.
If this is not possible, seek assistance from an attorney, or go directly to the MCAD and file a complaint. For most cases, however, it is important legally to provide the employer with an opportunity to address the situation. Only after they have been provided this opportunity, and failed, should legal assistance be considered.
You should also create a diary of the harassment if it is continuing in nature. Document the date, time, location, perpetrator, any witnesses, and describe the conduct on each occasion.
Who can be held responsible for sexual harassment?
The perpetrator, their supervisor, and the employer can all be held responsible. This depends upon who the perpetrator is. Under Massachusetts law, if the perpetrator is a supervisor, then the company is considered responsible for the actions of the supervisor (also known as strict liability). If the perpetrator is a co-worker, then the company can only be held responsible if it knew or should have known about the harassment, and failed to take adequate action. This is one reason why it is important that you report the harassment of a co-worker immediately to appropriate personnel.
What remedies are available to a victim of sexual harassment?
Remedies vary slightly depending upon whether you take your case through the MCAD, or whether you elect to proceed with a lawsuit in superior court. For example, punitive damages are only available in superior court. Remedies also depend upon whether you were terminated in retaliation of your complaint, or because you resigned because the hostile work environment became too much to take (called constructive termination).
Generally, remedies can include back pay (money that would have been earned from termination to the trial date); front pay (loss of future earning ability); emotional distress; attorneys' fees; and punitive damages. If you are terminated, or if you resign under the duress of the harassment, then you have a responsibility to try to limit the amount of damages you incur. This includes looking for another, similar job, seeking treatment for emotional distress, etc. If you do not take reasonable steps in these areas, the court could limit your recovery.
How can sexual harassment be prevented?
Massachusetts employers with more than 6 employees are required to adopt a policy to prevent sexual harassment. A model policy is available from the MCAD at http://www.mass.gov/mcad/harassment.html. The policy should be distributed to every member of the company. The policy defines sexual harassment, provides instructions on how to file a complaint within the company, and explains the investigation process. The best prevention is education, so that employees do not have to be afraid of being a victim of harassment, or of inadvertently committing harassment.
Sexual harassment is a very serious issue in today's workplace, but it can be prevented, or at least addressed properly if a harassment claim is made. If you believe you are a victim, you have every right to speak with a lawyer about your rights. Many firms, including Reade & Reade, do not charge for an initial consultation, and any inquiries remain private and confidential.
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