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).
The forgoing article on Sexual Harassment was
drafted by the Law Office of Goldstein and Clegg, LLC, an Massachusetts
employment law firm |
