Area of Law:
Chapter 151B of Massachusetts General Laws, also known as the Fair Employment Practices Act, outlines two types of sexual harassment – “quid pro quo” sexual harassment and “hostile work environment” sexual harassment. These two types of harassment, although separate from each other, may occur either independently or concurrently.
Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment includes “sexual advances,” requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of such advances, requests, or conduct is made either explicitly or implicitly a term or condition of employment or a basis for employment decisions. In other words, quid pro quo sexual harassment occurs when someone seeks out sexual favors in return for job benefits of any kind – accolades, pay increase, more favorable hours, etc.
To prove a claim for quid pro quo harassment, the plaintiff must establish that: (1) the alleged harasser made sexual advances, requests, or other conduct of a sexual nature; (2) the sexual conduct was unwelcome; (3) he or she rejected the advances; and (4) the terms or conditions of his or her employment were adversely affected. Alternatively, the plaintiff can show that after the above mentioned steps (1) and (2), he or she submitted to the advances and did so in reasonable fear of adverse effects to his or her employment.
Because the Massachusetts law says that this may either be done “explicitly or implicitly,” the harasser does not have to overtly tie his or her actions to workplace benefits. It may be implied from the person making the sexual advances being a supervisor of the person who the advances are being made upon that accepting the advances will result in workplace benefits.
Hostile Work Environment Sexual Harassment
Hostile work environment sexual harassment is “sexual advances, requests for sexual favors, and other verbal or physical nature when such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment.”
In order to establish a claim for hostile work environment sexual harassment, the plaintiff must show that: (1) he or she was subjected to conduct of a sexual nature; (2) the conduct was unwelcome; (3) the conduct had the purpose or effect of creating an intimidating, hostile, humiliating, or sexually offensive work environment; and (4) the conduct unreasonably interfered with the plaintiff’s work performance.
In order to create a hostile work environment, the conduct must be hostile, intimidating, humiliating, or offensive both from the perspective of the victim and to any reasonable person. If the employee is not offended, even if there is objectively offensive behavior, no hostile work environment is created. Similarly, if the employee is offended, but the conduct itself does not rise to the level of being offensive to the average reasonable person, then no hostile work environment is created.
While proof of a hostile work environment sexual harassment claim requires showing that the conduct interfered with the employee’s work performance, the effect does not need to be shown with tangible evidence, such as termination, suspension, or demotion. Rather, the employee may show through the totality of the circumstances – the severity and pervasiveness of the conduct – that the conduct created an impediment to effectively doing his or her job.
If you believe you have been subjected to sexual harassment, you should start by filing a complaint with both the US Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.