Employees who engage in sexual activity at work can still claim Sexual Harassment

May 28th, 2008, 6:31 pm

A central issue that many Plaintiff’s face in bringing claims for sexual harassment in the workplace is whether they were actually offended. More specifically, when a Plaintiff has engaged in conduct at work that may be construed as sexual in nature, whether it be sending sexually explicit emails, viewing pornography at work on their workstation or other similar conduct. The question that must be asked is whether such a person can assert a claim for sexual harassment and survive the Defendant’s challenge that such a person can not claim any sexual comments or activity is unwelcome.The complaining party must actually be offended by the conduct at issue. Ramsdell v Western Massachusetts Bus Lines, Inc., 415 Mass. 673, 677-678 (1993).To determine whether a claim of hostile environment harassment is made out there is an objective and subjective test. To be actionable the harassing conduct must be work-related. Muzzy, 434 Mass at 411 The conduct complained of must be sufficiently severe or pervasive to interfere unreasonably with the work performance of a reasonable person in the plaintiff’s situation. Winters v ADAP, Inc., 76 F.Supp.2d 89, 95 (D.Mass.1999)

In order to successfully demonstrate sexual harassment, a victim has the burden of proof. Massachusetts law recognizes two distinct categories of illegal conduct: quid pro quo harassment: where requests for sexual favors or acquiescence in sexual advances are made a condition of employment or as a basis of employment decisions; and hostile harassment, where an abusive work environment is created by verbal or physical conduct of a sexual nature which “unreasonably interferes with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.

To determine whether conduct is “unwelcome,” it is permissible to examine the victim’s actions. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 (1986). At the trial, the parties presented conflicting testimony about the existence of a sexual relationship between the Plaintiff and the supervisor. While the question whether particular conduct was indeed unwelcome presented difficult problems of proof and turned largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the “voluntariness” of respondent’s participation in the claimed sexual episodes. The correct inquiry was whether the Plaintiff by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 (1986).

The court in Henson v. Dundee, determined whether the conduct was unwelcomed by “the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.” Henson v. City of Dundee, 682 F.2d 897 (1982).

The mere fact that a female employee participates in some workplace conduct that is sexual does not, by itself, prove that the conduct is welcome and that she does not perceive her environment to be hostile, as would preclude a sexual harassment claim under Title VII or Massachusetts law; nor does it suggest that the employee enjoyed or appeared to enjoy the campaign of harassment against her. Horney v. Westfield Gage Co., D.Mass.2002, 211 F.Supp.2d 291, affirmed in part, reversed in part 77 Fed.Appx. 24, 2003 WL 22326558.

Evidence that sexually-charged and abusive language in female employee’s workplace, even if not gender-related, was used regularly by men toward women, together with evidence of sexual calendars, pictures, jokes, and posters in the workplace, presented a question for the jury regarding whether such conduct was gender-based, as required to establish sexual harassment under Title VII and Massachusetts law. Horney v. Westfield Gage Co.

In determining whether sexually harassing conduct violates Massachusetts law, courts may look to interpretations of Title VII, but are not bound by interpretations of Title VII in construing Massachusetts law prohibiting work environments pervaded by harassment or abuse. Mullenix v. Forsyth Dental Infirmary for Children, D.Mass.1996, 965 F.Supp. 120. To establish sexual harassment claim under Massachusetts law, there must be showing that work environment is subjectively offending to plaintiff; plaintiff must show that employer’s conduct was intentionally or in effect hostile, intimidating, or humiliating to plaintiff in way which affected her performance. Mullenix v. Forsyth Dental Infirmary for Children.

In determining whether the work environment is hostile, significant out-of-work harassment may be considered. Salvi v. Suffolk County Sheriff’s Dept. 855 N.E.2d 777, 67 Mass.App.Ct. 596(2006).

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Teen Girls the subject of Sexual Harassment

May 4th, 2008, 9:40 am

The press as well as employment lawyers have significantly educated the American public as to the problem of sexual harassment in the workplace. Many adults were subject to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature which had the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. However, over the past few years, the general public has been made aware of not only how unprofessional and unethical such practices are, but more importantly how such conduct can lead to significant litigation costs and massive judgments for emotional distress.

Employers and supervisors in Massachusetts may not sexually harass their employees by way of either direct or indirect innuendo. Where a supervisor’s conduct has the purpose and effect of unreasonably interfering with employee’s work performance by creating intimidating, hostile, humiliating, and sexually offensive work environment, Massachusetts courts have classified such conduct as sexual harassment. Cardona v. Conn. Car Rental, 20 Mass. L. Rep. 82 (2005). More specifically, under Massachusetts law, it is an unlawful practice for an employer, as defined in Mass. Gen. Laws ch. 151B, § 1(5), to sexually harass any employee. Moreover, Sexual harassment is not limited to any verbal conduct of a sexual nature which is found to interfere unreasonably with an employee’s work performance through the creation of a humiliating or sexually offensive work environment can be sexual harassment under Mass. Gen. Laws ch. 151B. Melnychenko v. 84 Lumber Co., 424 Mass. 285 (1997).

Under Massachusetts law, an employee has the right to be free from unreasonable, substantial, or serious interference with privacy, as stated in G. L. c. 214, § 1B, ID. Where a supervisor’s misconduct occurs at the defendant’s place of business while he or she holds a supervisory position, the sexually harassing conduct falls within the scope of employment for purposes of G. L. c. 214, § 1B. College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 165-167, 508 N.E.2d 587 (1987).

As a result of the forgoing, many companies have since instituted sexual harassment policies, which they require all employees to read prior to commencing their employment. In addition, many companies have training programs for their adult workforce. The problem is that many companies employee part time teenage employees, who neither understand the ramifications of sexual harassment nor take part in any of the training programs, read the manuals or are spoken to regarding sexual harassment by their supervisors, who in many cases are also teenagers. This is particularly a problem for businesses one would commonly find in a shopping mall, such as fast food, retail and amusement park companies.

During 2007, according to the Equal Employment Opportunity Commission (EEOC), referring to 16 – 19 year olds, “charges filed and anecdotal evidence indicates that discrimination is a problem for teenagers.” According to a professor of social work, Susan Fineran, 35% of high school students surveyed claimed they were subject to sexual harassment at work, of which over 60% were teenage girls. According to a report in the magazine, Nation’s Restaurant News, over the past decade, restaurant’s alone have paid out in excess of $7.3 million dollars to battle sexual harassment lawsuit regarding teenagers.

What is the gist of all of this? If corporate America wants to avoid costly prolonged litigation, must do a much better job educating teenage part time employees, in the same way they have done so with their full time adult workforce.

Attorney Michael Goldstein drafted the forgoing article for the Law Office of Goldstein and Clegg, a Massachusetts sexual harassment attorney. Some of the statistics form the forgoing article was derived from April 2008, ABA Journal.

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