Labor & Employment Law

: Massachusetts Employment Law Blog

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

By Michael Goldstein, Esq. (all)

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).

Full post as published by Massachusetts Employment Law Blog on May 28, 2008 (boomark / email).