The Law @ Work

Employees’ Harassment Claims Not Limited to Claims Under 151B

Massachusetts General Laws Chapter 151B protects employees from workplace harassment on the basis of race, sex, religion, and other characteristics protected by that law.  And employers may be under the impression that, unless harassment is based on a protected characteristic, it is not unlawful.  However, as demonstrated in a recent Superior Court case, Shipley v. Nagel Cutrell Wendell & Associates et al., No. 13-647-A, employees have recourse for certain types of workplace harassment that fall outside the scope of 151B.

Massachusetts General Laws Chapter 258E was passed in 2010 to provide individuals with the opportunity to obtain restraining orders as a result of workplace harassment (prior to the law’s passage in 2010, restraining orders were only available against household members).  In addition to a restraining order, the statute also allows victims to seek damages, costs and attorneys’ fees. Notably, there is no statute of limitations on claims brought under Chapter 258E.

Beatrice Shipley worked as a patient coordinator at Nagel Cutrell Wendell & Associates. In her complaint, Shipley alleged that her supervisor, Gregg Nagel, continually engaged in a pattern of inappropriate, threatening and unwanted behavior at work, including pushing, grabbing, and otherwise touching her in an offensive manner, and making threatening and intimidating statements to her, all of which ultimately compelled her to resign her employment. Shipley asserted a sexual harassment claim under Chapter 151B, as well as a criminal harassment claim under Massachusetts General Laws Chapter 25.  The employer moved to dismiss Shipley’s claims under Chapter 25, arguing that Shipley did not have standing to personally enforce a criminal statute and that Chapter 151B provided the exclusive remedy for claims of harassment.

The court disagreed and interpreted Shipley’s complaint not as an attempt to enforce a criminal statute but rather as a civil harassment claim under Chapter 258E.  While the judge acknowledged that Chapter 151B is the exclusive remedy for claims of sexual harassment or harassment motivated by discrimination, he noted that Shipley’s allegations included harassment that were not motivated by discrimination, and therefore Shipley’s lawsuit could proceed as to those claims under Chapter 258E.

Although “harassment” under Chapter 258E is defined as: “3 or more acts of willful and malicious conduct aimed at a specific person” that is intended to and does, in fact, “cause fear, intimidation, abuse or damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of” certain other Massachusetts laws, it is unclear exactly what kind of workplace misconduct will rise to this definition of harassment.  It is also unclear whether and under what circumstances employers may be vicariously liable for nondiscriminatory harassment committed by their employees, what kinds of losses are compensable under the statute, and how a restraining order should be enforced in the workplace.  Moreover, this case may open up the door for more employee plaintiffs to include claims under Chapter 258E in case the nature of their claimed harassment is found to be outside the protections of 151B or if the statute of limitations has expired on claims for discriminatory harassment.  In addition,  unlike claims under Chapter 151B, which must be filed with the Massachusetts Commission Against Discrimination before they can be brought in court, claims under 258E do not have any administrative filing requirement.

Although it remains to be seen whether there will be a significant increase in the inclusion of 258E in employment harassment claims, employers would do well to discourage – in policy and practice – all forms of harassment in the workplace, regardless of the motivation.



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