Believe it or not, the Massachusetts Commission Against Discrimination has never issued any formal guidance about harassment in the workplace other than sexual harassment. And its current guidelines on sexual harassment have not been updated for more than six years. All of that is about to change.
In January, the MCAD published draft guidance entitled “Guidelines on Harassment in the Workplace” (the “Guidelines”). At 44 pages, the Guidelines are 17 pages longer than the MCAD’s existing guidelines on workplace sexual harassment, and they contain lots of new content and more than a few surprises. The Guidelines are not yet final – the MCAD has given the public until March 25, 2024, to provide comments on the Guidelines, and could make changes before finalizing them, probably sometime later this year. Information about how to submit comments is available here.
We’ll continue to monitor the status of the Guidelines and will publish any noteworthy updates on our blog. In the meantime, the following is a summary of what we believe are the key highlights in the current draft.
MCAD emphasizes that employers can be liable for harm to the “public interest”
One of the most noteworthy aspects of the Guidelines is the MCAD’s repeated pledge to remedy harassment in the workplace even when it causes little or no harm to the victim. For example, the Guidelines state that the anti-discrimination laws may be violated “[e]ven where an employee voluntarily agrees to an illegal quid pro quo and might be shown to have enjoyed sought-after benefits as a result, with little evidence of emotional or other harm.” Similarly, the Guidelines remind employers that, although sexual harassment is typically conduct that has the effect of unreasonably interfering with an employee’s job performance, sexually harassing conduct is also unlawful if that is its purpose, regardless of its effect on the employee.
In such cases, the Guidelines emphasize that the MCAD may still impose “affirmative relief” and/or civil penalties because the harassing conduct harms the public interest even if it does not harm the purported victim, and the MCAD is charged with vindicating the public’s interest in enforcing the anti-discrimination laws. Affirmative relief could include, among other things, mandatory apologies, reporting requirements, monitoring and enforcement activities, and educational and training initiatives.
MCAD abandons the long-used “severe or pervasive” standard
The MCAD’s current guidelines on sexual harassment state, unequivocally, that “the Commission looks to whether the conduct is severe or pervasive” when determining whether sexually harassing behavior rises to the level of a hostile work environment. This guidance is in line with long-standing precedent of both the Massachusetts and the federal courts. In its new Guidelines, however, the MCAD appears to abandon this long-held standard for both sexual harassment and harassment based on other protected classes in favor of a case-by-case approach based on the totality of the circumstances.
Section 4 of Chapter 151B defines sexual harassment in part as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature [that] 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.” Relying on this language, the Guidelines define a hostile work environment as one “impedes an employee’s full participation in the workplace” and states that, although the MCAD and the courts look at whether the conduct was “severe or pervasive” when making this determination, “the ultimate focus is on the totality of all relevant circumstances.” “When properly viewed in context,” the Guidelines continue, workplace incidents “may create a hostile work environment even if, when viewed without context and in isolation, each incident may not appear severe, and the incidents alone are not pervasive. . . . [H]ostile work environments are determined exclusively on a case-by-case basis . . . .”
According to the Guidelines, factors relevant to this new analysis may include the identity of the harasser and their relationship to the employee; their tone, volume and demeanor during any incident of harassment; their nonverbal conduct toward the employee before, during or after any incident; whether any verbal remarks were personal to the employee; the time and place of the incidents and who else was present; how the employee and co-workers reacted to the incident; the interval between incidents; and any consequences the employee experienced as a result of the incidents.
MCAD recognizes quid pro quo “protected class harassment”
Most employers know that there are two types of sexual harassment – the creation of a hostile work environment and a so-called quid pro quo, where an employee is asked or required to submit to sexual advances or other sexual conduct in exchange for some employment-related benefit or opportunity. Because sexual harassment is rooted in a particular type of conduct by the harasser, rather than any protected characteristic of the victim, the quid pro quo variety of workplace harassment has never really applied to harassment based on other protected classes, like race, religion or disability. According to the Guidelines, however, the MCAD will now recognize what it is calling “quid pro quo protected class harassment.”
Noting that such harassment is “atypical,” the Guidelines state that it occurs when “an employee is asked to tolerate discriminatory conduct as a condition of employment, to avoid adverse employment actions, or to enjoy workplace benefits or opportunities,” such as “where an employee is required as a term or condition of employment to mute or change behaviors or characteristics tied to protected class.” For example, the Guidelines refer to a situation where an employer refuses to accept an employee’s stated gender identity and coerces, threatens or cajoles the employee to behave or dress in ways that are inconsistent with that identity, perhaps by conditioning their continued employment, benefits, promotions, assignments or other opportunities on the employee’s willingness to conform.
MCAD further explains strict liability for harassment by non-supervisors
Most employers also know that, in Massachusetts, they may have a defense to harassment committed by a non-supervisor if they did not know or have reason to know about the harassment or they took prompt and effective remedial action to address it, but are strictly liable for harassment committed by a supervisor. Whether an employee is a supervisor can therefore be an important factual determination in a harassment case.
It has long been the case that an employee’s status as a supervisor or non-supervisor depends on more than just their title. It is based on whether they have a supervisory relationship with the alleged victim in fact, either directly or indirectly, and that in turn depends on a host of factors related to the extent of the harasser’s authority over the employee’s duties, compensation, performance, etc. In the Guidelines, however, the MCAD reiterates its position that, under the tort law doctrine of “apparent authority,” an employee can be deemed a supervisor even if they did not have supervisory authority over the victim, especially if the victim reasonably believed the employee did have such authority over them. The Guidelines go on to explain that apparent authority may exist if the employer does nothing to correct an employee “who is acting as a supervisor without having any authority to do so,” or permits an employee to attend manager meetings, lists them as a manager in a company directory, or gives them duties or compensation that are out of line with their actual role.
MCAD issues new training and policy guidance
Even though Massachusetts law does not require employers to train any of their employees about discrimination or harassment in the workplace, and only requires employers to have a policy on sexual harassment, the MCAD has long taken the position that employers should do more to ensure that employers do not engage in illegal discrimination or harassment of any kind and to educate employees about their rights.
In its new Guidelines, the MCAD doubles down on this by making a series of strong recommendations that go well beyond legal requirements. They include:
- Recommending that employers regularly conduct education and training programs on anti-harassment for all employees, including by training employees how to recognize and report incidents of harassment;
- Encouraging employers to provide sexual harassment training to all employees within one year of hiring;
- Advising employers to conduct additional anti-harassment training for supervisory and managerial employees within one year of hiring or promotion into a supervisory or managerial position, addressing their specific responsibilities to respond to harassment complaints and take appropriate remedial action;
- Encouraging employers to have a broad anti-harassment policy that prohibits not just sexual harassment but also harassment based on protected classes, and includes specific content;
- Recommending that employers prohibit the dissemination of harassing text messages, voice messages, e-mail and other electronic content in the workplace;
- Calling it a best practice for employers to require employees to acknowledge that they have received and read the anti-harassment policy upon hire and annually, and to make the policy readily accessible; and
- Recommending that employers post the MCAD’s sexual harassment poster.
Takeaways
Apart from actual regulations, guidance issued by an administrative agency does not have the force of actual law. For this reason, the Guidelines – if and when they are finalized – will not be binding on either employers or the courts. But as a practical matter, such guidance is frequently relied upon by judges as “persuasive authority” as to how the law should be interpreted and applied. Additionally, it will almost certainly be used by the MCAD when making determinations in cases pending at the Commission. For this reason, employers should be familiar with all guidance published by the MCAD, make sure that supervisory and Human Resources personnel understand changes in the way the MCAD will apply the non-discrimination laws, and consider following the MCAD’s recommendations when it comes to ways employers can prevent discrimination and harassment in the workplace. Taking such preventative measures may not avoid every lawsuit, but it could substantially reduce discriminatory and harassing behavior in the workplace while also improving the employer’s legal and factual position if litigation ever does get filed. If it feels like a daunting task, reach out to your employment counsel for assistance – they can help you craft updated policies and work with you to develop and/or present new or improved training programs.