94-348 C.M.R. ch. 3, § 10 - HARASSMENT

1. Harassment on the basis of protected class is a violation of Section 4572 of the Act. Unwelcome advances because of protected class (e.g., sexual advances or requests for sexual favors), comments, jokes, acts and other verbal or physical conduct related to protected class (e.g., of a sexual, racial, or religious nature) or directed toward a person because of protected class constitute unlawful harassment when:

A. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or union membership;

B. Submission to or rejection of such conduct by an individual is used as the basis for employment or union membership decisions affecting such individual; or

C. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working or union environment.

2. An employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as "employer" in this section) is responsible for its acts and those of its agents and supervisory employees with respect to unlawful harassment. When the supervisor's harassment culminates in a tangible employment or union membership action, such as, but not limited to, discharge, demotion, or undesirable reassignment, liability attaches to the employer regardless of whether the employer knew or should have known of the harassment, and regardless of whether the specific acts complained of were authorized or even forbidden by the employer. When the supervisor's harassment does not culminate in a tangible employment action, the employer may raise an affirmative defense to liability or damages by proving by a preponderance of the evidence:

A. That the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and

B. That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

3. With respect to persons other than those mentioned in subsection 2 of this section, an employer is responsible for acts of unlawful harassment in the workplace where the employer, or its agents or supervisory employees, knows or should have known of the conduct unless it can show that it took immediate and appropriate corrective action. In reviewing cases involving non-employees, the Commission will consider the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of such non-employees.

4. In determining whether alleged conduct constitutes unlawful harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the alleged incidents and the context in which they allegedly occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

5. An employer should take all steps necessary to prevent unlawful harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, and informing employees of their right to raise and how to raise the issue of harassment under the Act.

6. Where employment or union opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex or sexual orientation or gender identity discrimination against other persons who were qualified for but denied that employment or union opportunity or benefit.

Notes

94-348 C.M.R. ch. 3, § 10