Massachusetts Employment Law Letter

Another bite at the apple?

Most employers are familiar with the anti-discrimination laws that protect certain classes of employees from being treated differently or harassed based on their protected characteristics, such as race, religion, or disability.  But you may not know that Massachusetts law also prohibits harassment that is not based on a protected characteristic and allows victims to obtain not just a restraining order, but damages, costs, and attorneys’ fees as well.   Until recently, this law seemed to have little impact on employers.  But a Massachusetts judge recently concluded that the law gave an employee another way to sue her employer for harassment in the workplace.

Workplace naughtiness leads to lawsuit

Beatrice Shipley worked as a patient coordinator at a Massachusetts dental clinic, Nagel Cutrell Wendell & Associates.  According to Shipley, her supervisor, Dr. Gregg Nagel, continually engaged in a pattern of inappropriate, threatening, and unwanted behavior at work, including pushing, grabbing, and touching her in an offensive manner and making threatening and intimidating statements to her, all of which she said compelled her to resign and prompted her to file a lawsuit.  Not satisfied with filing suit under Mass. Gen. L. Ch. 151B, which protects employees from harassment based on protected characteristics, including sexual harassment, Shipley also filed a claim for criminal harassment under Mass. Gen. L. Ch. 25, § 43A.  Shipley named the dental clinic and Dr. Nagel in her suit.

The dental clinic and Dr. Nagel asked the court to dismiss the criminal harassment claim, arguing that Shipley did not have standing to try to enforce the criminal harassment statute against them.  The court acknowledged that it’s up to the Attorney General or the police, not individual citizens, to privately enforce criminal laws, but the court nonetheless allowed Shipley’s claims to go forward under the Commonwealth’s civil harassment statute, Ch. 258E.

Civil harassment?  What’s that?

Chapter 258E was passed in 2010 to expand the availability of restraining orders by allowing victims to obtain legal protection from harassment by anybody, including non-household members.  To further that goal, the statute is incredibly broad in its reach.  It defines “harassment” to include rape and certain other crimes, but also more broadly as any three or more acts of “willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.”

Under this definition, any form of conduct can constitute harassment so long as it was intended to cause the victim to feel afraid or intimidated and actually caused that result.  And it does not matter whether the person accused of the harassment intended to discriminate against the victim.  In addition to allowing victims to obtain a restraining order, the statute also provides for the recovery of unlimited compensatory damages, including medical expenses, plus costs and attorneys’ fees.  There is also no statute of limitations – yes, that’s right:  Ch. 258E expressly forbids the denial of any complaint under the statute “solely because it was not filed within a particular time period after the last alleged incident of harassment.”  In addition, there is no requirement that the victim file with any administrative agency before bringing her claims in court.

Do employees get two bites at the apple?

Until recently, employers may have taken for granted that, in the employment context, the Ch. 151B, provides the exclusive remedy for workplace harassment, and the court acknowledged that Ch. 151B does provide the exclusive remedy for sexual harassment or harassment that is motivated by prohibited discrimination, i.e., based on one or more protected characteristics, such as race, religion, or gender.  But the court also noted that Ch. 151B is not involved if the harassment was not motivated by discrimination.  In other words, an employee may go straight to court to seek a restraining order and other remedies under Ch. 258E whenever he or she believes (or merely claims) that the harassment might not have been discriminatory in nature, i.e., based on a protected characteristic but was still willful and malicious and intended to cause fear, intimidation, or abuse, and in fact did have that result.

The trial court also concluded that a complaining employee should not be required to pick and choose between a claim under Ch. 151B and a claim under Ch. 258E.  Provided that the complaint includes allegations of both discriminatory and non-discriminatory harassment, an employee can file a lawsuit under both statutes.  And because Ch. 258E was enacted after Ch. 151B, and was “designed to provide a quick and effective means of obtaining equitable relief to remedy harassment,” an employee may file for a restraining order immediately, regardless of whether the employee is pursuing her harassment claim under Ch. 151B at the Massachusetts Commission Against Discrimination.  Claims at the MCAD frequently languish for a long time without resolution.  Chapter 258E provides for a faster remedy that is not dependent upon the progress of the case at the MCAD.  Of course, in Shipley’s case, she had already passed through the MCAD threshold, but nonetheless, the court allowed her claim under Ch. 258E to go forward.  The case is Shipley v. Nagel Cutrell Wendell & Associates et al. (Mass. Super. Ct. 2013),


The Shipley opinion leaves many questions unanswered, including what kinds of workplace misconduct rise to the level of “willful and malicious” under Ch. 258E, whether and under what circumstances an employer might face liability for harassment that was committed by an employee, what kinds of “losses” are compensable under the statute, and how a restraining order should be enforced in the workplace.

Perhaps more importantly, the decision also could prompt employees to abandon Ch.151B in favor of Ch. 258E where the motivation for the alleged harassment is (as in most cases) unclear or would be difficult to prove.  Indeed, the availability of attorneys’ fees, the lack of a statutory limitations period, and the ability to file directly in court, without first having to go through any administrative agency, could make such claims incredibly attractive to plaintiffs’ attorneys.  Of course, how courts will construe the scope and parameters of this novel cause of action remains to be seen.  For now, however, employers may want to take a fresh look at their harassment policies and training materials, and take steps to discourage – in policy and in practice – all forms of harassment in the workplace, no matter what the motivation.

Article By: Erica E. Flores, Esq.
Reprinted from the December 2013 issue of the  Massachusetts Employment Law Letter.