The Law at Work: Sexual harassment policies
I have worked as a lifeguard and swimming instructor for many years and now have the responsibility of recruiting and training other lifeguards. There is often a lot of horseplay when the guards are on breaks and after hours and although there have never been any complaints of sexual harassment, I want to make sure no one crosses the line while I am in charge. Can you give me some advice regarding what I should be doing?
The environment you are describing is one in which you are wise to establish what behavior is appropriate at the beginning of the summer. Both Massachusetts law and federal law prohibit discrimination based on sex, which includes sexual harassment. Claims to the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission, the respective state and federal agencies that investigate complaints of discrimination, have increased substantially, as have awards to victims.
Sexual harassment is unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct made toward an employee by an employer (e.g. supervisor or manager), the rejection or acceptance of which affects a term or condition of employment or influences an employment decision. A pattern of sexual harassment (perpetrated by an employer, another employee or the employer's vendors, customers or clients) may create a hostile and offensive work environment, which is also prohibited. Sexual harassment may be verbal, nonverbal and physical. Examples include making sexually suggestive jokes or comments; discussions regarding sexual fantasies, preferences, history or activities; displaying suggestive pictures and objects; leering; whistling; gestures; hugging; kissing; and touching. And, with particular respect to the situation you describe, it is not necessarily the case that after-work conduct will escape scrutiny, depending upon the particular facts (e.g., who is present, where the conduct occurs, whether the gathering is work-related, etc.).
Under Massachusetts law, employers may be held responsible for sexually harassing conduct of their supervisors whether or not the victim actually complained about the conduct and whether or not the employer had actual knowledge of the alleged harassing conduct. In certain circumstances, the manager and/or supervisor may also be held individually liable where they are either the perpetrator of the harassing conduct or if they are found to have aided and abetted the commission of the unlawful conduct.
In addition, Massachusetts employers of six or more employees are required to institute and distribute, annually, a formal written sexual harassment policy, which describes unlawful conduct and identifies both internal and external complaint avenues. The policy must also include information regarding prohibitions against retaliation against those who complain about sexual harassment or support someone else’s complaint and discuss the employer’s responsibilities for investigating complaints.
The MCAD Web site is an excellent resource for employers and includes Sexual Harassment in the Workplace Guidelines that can be used by employers to develop a sexual harassment policy. The site also has a model sexual harassment policy. These can be found at mass.gov/mcad. While this site is a good place to start, you should consult an employment attorney to review your policy before it is distributed and discuss your obligations if you receive a complaint. In addition, you should consider bringing in employment counsel to conduct a training session for all your managers and supervisors regarding your policy and the antidiscrimination laws in general.
Beth O’Neal, Esq., is a partner in the Boston law firm of Masterman, Culbert & Tully LLP.
Send questions to law@capebusiness.net or The Law at Work, Cape Business, 704 Main St. (Route 6A), Dennis, MA 02631.
This column, which may be considered advertising under the ethical rules of certain jurisdictions, is intended as a general discussion of the topics covered, and does not constitute the rendering of legal advice or other professional advice by Masterman Culbert and Tully LLP or its attorneys. In compliance with U.S. treasury regulations governing tax practice, any U.S. federal tax advice contained in this publication is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties or in connection with the promoting, marketing or recommending to any individual of any transaction or matters addressed therein.
Published in Cape Business July/August 2007
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