Sexual Harassment Claims

 

I think I am being sexually harassed at work.

 

It happened to me: A Real Life Story

 

a. I think I am being sexually harassed at work, how do I prove it?

 

b. What does "Quid Pro Quo" sexual harassment look like?

 

c. What does "Hostile Work Environment" sexual harassment look like?

 

d. How do I show that this conduct affected my ability to work?

 

e. How do I show that my employer knew what was going on?

 

f. My employer has fewer than six employees – is there anything I can do?

 

g. Can I file a claim against my boss/supervisor under Massachusetts law?

 

h. Can I bring a claim against my co-worker if he is not my boss or supervisor?

 

i. I complained to my employer and they reprimanded the harasser. Can I still file a claim?

 

j. I reported to my employer, but they didn’t do anything – can I still file a claim?

 

k. What if my harasser is also a woman?

 

l. Is one incident of sexual harassment sufficient basis for a claim?

 

m. What if the harassment has been going on for a long time? Can I still file a claim?

 

n. Can I get damages for emotional distress?

 

o. What is the difference between sex discrimination and sexual harassment?

 

p. If I prove sexual harassment, what kind of remedies am I entitled to? (New window to WDIGIIW)

 

q. My employer has fewer than 6 employees – is there anything I can do? (New window to WDTLS)

 

r. Is there a time limit for when I can file a claim with the MCAD? (New window to WDTLS)

 

Back to Types of Discrimination

 

a. I think I am being sexually harassed at work, how do I prove it?
To prove sexual harassment, you must show the following:
1) that you are a member of a protected class;
2) that you were subject to unwelcome sexual harassment;
3) that the harassment was based on sex;
4) that the harassment was sufficiently "severe" or "pervasive" as to alter the conditions of your employment;
5) that the conduct was objectively and subjectively offensive (in other words, the conduct must be offensive not only to you but also to a "reasonable" person in the same situation); and
6) that the employer can be held responsible (this doesn’t mean that the employer caused the harassment – there are other ways to hold the employer responsible).

 

Back to top

 

b. What does "Quid Pro Quo" sexual harassment look like?
Quid pro quo harassment involves situations where a woman is, for example, fired or not promoted for failure to submit to her harasser’s "advances, requests or conduct."

 

Back to top

 

c. What does "Hostile Work Environment" sexual harassment look like?
Hostile work environment harassment applies in cases where a pattern of harassing conduct or behavior exists to the extent that it "unreasonably interfer[es] with an individual’s work environment by creating an intimidating, hostile, humiliating or sexually offensive work environment."

 

Back to top

 

d. How do I show that this conduct affected my ability to work?
There have been cases where this has been shown by testimony from the victim’s psychologist or therapist. If you reported the conduct to your employer, that may also provide evidence of the effect of the harassment on your work. There are many different ways to show this effect, and it will vary from case to case, based on the individual victim and the harassment that occurred.

 

Back to top

 

e. How do I show that my employer knew what was going on?
In Massachusetts, as opposed to under federal law, you don’t have to show that your employer actually knew what was going on. Employers in Massachusetts are strictly liable for sexual harassment perpetrated by supervisory employees, even if it neither knew nor should have known that there was harassment. However, your case will probably be stronger if you can show that your employer either knew or should have known what was going on. This can be established if you or another employee reported the harassment.

 

Back to top

 

f. My employer has fewer than six employees – is there anything I can do?
Yes – Massachusetts has another statute, Ch. 214 § 1C, which prohibits sexual harassment for employees who are not covered by Ch. 151B. If you wish to file a claim under Ch. 214 § 1C), you do not have to first file with MCAD . You have 300 days from the date of the harassment to file your claim in Superior Court. Important: if you are eligible to file a claim under Ch. 151B, you cannot file a claim under Ch. 214 § 1C as well.

 

Back to top

 

g. Can I file a claim against my boss/supervisor under Massachusetts law?
Yes. Ch. 151Ballows you to sue not only your employer, but also the harasser. Chapter 151B makes it illegal for any individual to "aid or abet" any prohibited discriminatory conduct.

 

Back to top

 

h. Can I bring a claim against my co-worker if he is not my boss or supervisor?
Yes. The aiding and abetting provision applies to any and all individuals, regardless of whether that person was your supervisor or a co-worker. You could even potentially sue non-employees.

 

Back to top

 

i. I complained to my employer and they reprimanded the harasser. Can I still file a claim?
It depends. If your harasser was a supervisor, it doesn’t matter if your employer’s handling of the situation was satisfactory or not – "remediation" is not a defense. In addition, "supervisor" does not necessarily mean your direct boss – if your harasser was someone who exercised supervisory authority over you (whether direct in hierarchy or not), s/he can still be held to be a supervisor. However, if your harasser was a coworker, the court will decide if your employer’s handling of the situation was satisfactory – if it was, that will be a valid defense to your claim.

 

Back to top

 

j. I reported to my employer, but they didn’t do anything – can I still file a claim?
Yes. In addition, you may be able to sue individuals for their failure to investigate your complaint. If the individual is someone who had a duty to address your complaints, for instance a supervisor, as opposed to a co-worker, then his or her failure to do so may constitute "aiding and abetting" under Ch. 151B.

 

Back to top

 

k. What if my harasser is also a woman?
Unlike some other states, Massachusetts courts have awarded damages for same-sex sexual harassment, regardless of the sex or sexual orientation of the harasser.

 

Back to top

 

l. Is one incident of sexual harassment sufficient basis for a claim?
In some cases, one incident can be enough to establish a case if the incident was particularly egregious. For example, in a case called Morehouse, a photo of the plaintiff was posted in several places at a company golf tournament, and the photographs were covered with crude captions and sexually explicit drawings. Many of the plaintiff’s co-workers saw the pictures, and she became depressed and unable to work as a result. The court held that although it was only one incident, it was clear that the incident had had a profound effect on the plaintiff’s work environment, and the plaintiff prevailed.

 

Back to top

 

m. What if the harassment has been going on for a long time? Can I still file a claim?
If the harassment is a pattern of conduct, continuous and ongoing, all that’s required when you file is that you can identify one incident within the six months before you file your MCAD complaint. As long as there’s a pattern of behavior, the commission will consider all of the behavior as part of the same violation. The only exception to this is where the harassment was so pervasive and extensive that you should have realized that the situation was hopeless and would never improve, and so you should have filed your claim then.

 

Back to top

 

n. Can I get damages for emotional distress?
Yes. Emotional distress damages are allowable as "actual" damages under Ch. 151B. In addition, victims may also sue for certain common law claims, including intentional infliction of emotional distress and assault and battery. However, claims for negligent infliction of emotional distress are not allowed with a Ch. 151B claim.

 

Back to top

 

o. What is the difference between sex discrimination and sexual harassment?
Sexual harassment is a form of sex discrimination under Massachusetts law.

 

Back to top


Legal Glossary

 


Return to Main Massachusetts Page

 


Return to Types of Discrimination

 


Return to States