(Last Updated On: May 12, 2021)
As the #MeToo movement demonstrates, sexual harassment can affect individuals almost anywhere, and it frequently occurs in the workplace. Time Magazine’s 2017 “Person of the Year” issue honored the women who spoke out against sexual harassment perpetrated in Hollywood, as well as women who came forward with other allegations and encouraged other women to do the same. In all, these women helped to solidify in the public forum the #MeToo movement, a movement that represents a “reckoning” with sexual harassment in the workplace and the many forms that it can take.
Nobody should have to endure sexual harassment in the workplace. Employees have a right to be free from harassment and retaliation, and employers have an affirmative obligation to prevent harassment in the workplace and to take swift action when harassment is reported. If you are experiencing sexual harassment in the workplace, please contact Rodman Employment Law for assistance.
What Constitutes Sexual Harassment Under Massachusetts and Federal Law?
Sexual harassment under Massachusetts and federal law is treated as a form of sex discrimination, and includes unwelcome sexual advances, requests for sexual favors, verbal or physical harassment of a sexual nature, and offensive comments about a person’s sex. For instance, a person can make derogatory comments about women in the workplace, and those comments may rise to the level of harassment.
There are two different types of sexual harassment under Massachusetts and federal law:
- Quid Pro Quo Harassment: This is a type of situation in which one person makes requests for sexual favors or sexual advances or engages in verbal or physical conduct that suggests to an employee that his or her refusal to submit to the behavior could result in negative employment decisions or that submitting to this behavior is a condition of her employment. For instance, a supervisor might tell an employee that if she does not submit to his sexual advances she will be terminated or demoted.
- Hostile Work Environment Harassment: A hostile work environment can involve similar behaviors as those involved in quid pro quo harassment, but the behaviors create a hostile work environment. This type of harassment involves requests for sexual favors in the workplace, sexual advances, verbal conduct of a sexual nature, or physical conduct of a sexual nature that unreasonably interferes with a person’s ability to work because it is so severe that it creates an intimidating and hostile workplace.
What is Actionable and What Isn’t?
For sexual harassment to be actionable, it must involve unwelcome conduct. For a hostile work environment claim, not only must the conduct be unwelcome, but also be severe and pervasive enough to create a hostile work environment. Examples of actionable claims include:
- Supervisor telling an employee that she must submit to sexual behavior to keep her job or to be eligible for a promotion;
- Employee making repeated and unwelcome derogatory comments over an extended period of time about an employee’s sex;
- Employee (including a supervisor or a boss) making repeated and unwelcome sexual advances toward another employee;
- Employee (including a supervisor or a boss) making a single sexual advancement toward another employee that is so severe that it creates a hostile and intimidating workplace;
- Non-employee, such as a customer or a client, repeatedly coming into the workplace and making derogatory comments about the employee’s sex or making unwelcome sexual advances.
What is not actionable? In general, any conduct that is not unwelcome is not actionable. In addition, for a hostile work environment claim, if the behavior is not sufficiently severe or pervasive, it may not rise to the level of creating a hostile work environment. There is no specific formula for these claims. Rather, each is handled on a case-by-case basis.
Special Challenges in a Workplace Environment
Sexual harassment in the workplace presents certain challenges. Given that a victim often must work with the harasser, it may be difficult for the victim to come forward for fear of retaliation or further unwelcome actions. In some cases, it can be difficult to discern whether conduct is unwelcome, particularly when the victim has concerns about coming forward or telling his or her supervisor to stop.
It is important to understand that the victim does not need to be the person harassed. A third party who is forced to witness harassment to the degree that it creates a hostile work environment may be able to file a claim. In addition, the harasser does not need to be employed in the same place as the victim. Indeed, non-employees—such as customers or clients—can perpetrate sexual harassment in the workplace, and the employer has a duty to stop this behavior.
The fact that so many different parties can play a role in these cases—from third-party employees who are offended by the conduct to clients who are doing the harassing—often creates special challenges in a workplace environment.
What to Do About Sexual Harassment in the Workplace
What can a victim do about sexual harassment in the workplace? At Rodman Employment Law, we recommend the following:
- Document the harassment and keep a copy for yourself. If the harassment is continuing and pervasive, you should consider keeping a notebook with dates, times, and descriptions of harassment.
- Tell the harasser to stop. If you feel that you can do so, inform the harasser that the conduct is unwelcomed and tell him or her to stop.
- Inform the employer or supervisor as soon as possible so that the employer can take preventive action.
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