Workplace Bullying and Harassment Claims in Massachusetts
Numerous statues prohibit unlawful harassment, including M.G.L. ch. 151B, Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. Collectively, these statutes prohibit workplace harassment that is based upon someone’s race, gender, sex, sexual orientation, national origin, religion, age, physical disability, and mental disability. They also prohibit sexual harassment.
Regardless of the statute, employees must establish four things in order to succeed on an unlawful harassment claim: (1) that the harassment is based on his or her race, sex, gender, pregnancy, religion, national origin, physical disability, mental disability, age over 40, military service, citizenship status, or genetic information; (2) the harassment is unwelcome, (3) that the harassment is objectively and subjectively offensive, and (4) that the harassment was severe or pervasive.
Willing and active participants in the harassing behavior will have a harder time establishing that the harassment was subjectively offensive. Courts have recognized, however, that the mere fact that an employee participates in workplace harassment does not, by itself, prove that the conduct was welcome and not offensive or that she did not view the workplace as hostile. Courts take this view relative to situations where the employee believes that she must participate in order to keep her job and minimize workplace friction.
Employers frequently defend harassment claims by claiming that the comments were meant as jokes or were not made with bad intent. This gets them nowhere as the proper analysis focuses on whether the employee was offended and felt it was harassing, not the employer’s intent. Put differently, intent behind the comment is irrelevant: only effect matters.
Employees do not need to complain about the harassing conduct in order to have a viable harassment claim. Again, they need only establish that the harassment was based on a protected characteristic, that it was unwelcome, that it was subjectively and objectively offensive, and that it was severe or pervasive.
Employers are required to deliver a workplace free from unlawful harassment, regardless of whether the harasser is a co-worker, supervisor, vendor, or customer. If the harasser, for example, is the mailman or the guy who fixes the printer, you could have a viable harassment claim.
In determining whether a reasonable person would find particular conduct hostile or abusive, a court must mull the totality of the circumstances, including factors such as the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.
A hostile work environment is one that is pervaded by harassment and abuse, with the resulting intimidation, humiliation, and stigmatization, and that poses a formidable barrier to the full participation of an individual in the workplace.
Conduct that is directed at someone other than plaintiff, but that the plaintiff witnesses, can give rise to a viable harassment claim. Thus, acts of sexual harassment directed at others that were known to the plaintiff, and the defendant’s failure to discipline anyone for the acts, or effectively remedy them, may be considered part of the environment in which the plaintiff worked.
Employers are automatically liable for harassing conduct committed by their supervisory employees. Non-supervisor harassment, however, only creates employer liability if the employer fails to take adequate remedial steps upon learning of the harassing behavior.
We have experience representing employees in unlawful harassment claims across Massachusetts, including in Pittsfield, Springfield, Lowell, Lawrence, Worcester, Fall River, New Bedford, and the Cape.
