Verified accounts of sexual harassment in the entertainment industry and political arena have spiraled out of control. Unfortunately, most of the accusations do not involve one-time events that can be chalked up to mistakes in judgment. Instead, employers and others in control took a head-in-the-sand approach, hoping the harassing behavior would magically go away on its own. That type of response puts employers at risk of liability and can damage a company’s reputation in the media far worse than a lawsuit would.
Recently, the Massachusetts Commission Against Discrimination (MCAD) issued two decisions that demonstrate how sexual harassment claims turn on the facts and the credibility of witnesses. The decisions also show how employers can take steps to avoid liability for harassment and what lies ahead for employers that fail to promote a workplace that is free of sexual harassment.
Bad Behavior Costs Company $20,000
In the first case, a female employee claimed that she was subjected to a sexually hostile work environment by her supervisor. She (understandably) claimed that her supervisor made her feel uncomfortable and intimidated by asking about her virginity and breasts. He also asked if she wanted to go to a casino with him. The supervisor even told the employee, who is from El Salvador, that he liked Salvadoran women because they are “good for child bearing.”
The employee filed a charge of discrimination with MCAD, and the commission found probable cause to believe that discrimination could have occurred. Instead of filing a lawsuit in court, the employee chose to have MCAD take jurisdiction over the matter. The case proceeded to a public hearing in which a hearing officer heard testimony and reviewed evidence.
The supervisor argued that he was joking by asking if the employee wanted to go to a casino and by talking about her virginity. MCAD did not see it that way. The hearing officer concluded that the supervisor created an unlawful hostile work environment and awarded the employee $20,000 in damages.
The hearing officer stated: “Notwithstanding the informal work atmosphere, even if [the supervisor] was joking, some of the conduct he directed at [the employee] was demeaning and humiliating, including sexually intrusive inquiries and comments focused on her body.”
To make things worse for the employer, MCAD pointed out that under Massachusetts law, the company was on the hook for the damages even though the employee did not report the behavior to management because the harassing employee was a supervisor. MCAD v. Beautiful Rose Corporation.
‘Banter’ Not Enough for Harassment Claim
The second case involved a similar allegation of sexual harassment in the workplace, this time from a former employee. The employee claimed that her treatment was so bad she had to quit, raising a prospective constructive discharge claim with the sexual harassment accusations.
The employee alleged that a male coworker made sexually suggestive comments to her and tried to massage her shoulders, which she “shrugged off.” The employee also claimed that her hours were cut after she rejected the coworker’s advances, forcing her to quit her job. The accused harasser denied creating a hostile work environment for the employee, but he did admit to making comments about taking a client to Puerto Rico and knowing breast enhancement surgeons.
The employee did not pursue her case in court, and the charge of discrimination went to a public hearing before the commission. Unlike in the first case, the MCAD hearing officer determined that the “banter” between the employees was not enough to establish a claim for unlawful sexual harassment. For sexually harassing conduct to be actionable, it must be sufficiently severe or pervasive to create an “abusive work environment.”
The male employee’s comments may have been “inappropriate,” but they did not rise to the level of actionable harassment. In addition, the hearing officer found that the employee who complained about harassment was not credible regarding her claims about a lack of hours and compensation. MCAD v. Feel Well Rehab.
Bottom Line
MCAD reached opposite conclusions in these cases, but why? First, the harassing comments in the first case were clearly directed at the victim, while the alleged comments in the second case were more general in nature. Will that absolutely save an employer in every case? Probably not. The takeaway is that inappropriate comments or actions that are unmistakably targeted at a particular employee are huge concerns.
Second, remember that if a supervisor is responsible for creating a hostile work environment, no defense will save the company from liability under Massachusetts law. That’s because the supervisor is considered to act on behalf of the company, even if his conduct would not be approved by the employer. How can you prevent that problem? We say this a lot, but it always bears repeating: Regular supervisor training is a must for avoiding litigation and liability for supervisors’ misconduct.
Third, note that although the damages in the first case were relatively small and the employer in the second case was not required to pay any damages to the employee, both employers were required to retain counsel to represent them at the public hearings. And since public hearings are, in effect, trials, the legal fees the employers paid to their own attorneys likely were not small. In the first case, the employee was entitled to have her legal fees paid by the employer as well. So, win or lose, sexual harassment cases are expensive to defend.
Finally, remember that credibility matters when investigating allegations of harassment. In harassment cases, employers are often left in a “he said, she said” battle, with little to no supporting evidence outside the victim’s allegations and the accused’s denial. Confronted with a similar situation, the hearing officer in the second case concluded that the victim was not credible and rejected some of her claims on that basis.
If you are conducting an investigation and witnesses are no help in determining whether the alleged misconduct took place, it will be up to you to make a credibility determination. Again, training in this area is key. Be sure that investigators know how to do things like ask proper questions and read body language so that they will be in a solid position to make credibility determinations during an investigation.
John S. Gannon is an associate at the firm of Skoler, Abbott & Presser, P.C., and an editor of Massachusetts Employment Law Letter. He can be reached at 413-737-4753 or jgannon@skoler-abbott.com.