(Guest post was written by the attorneys at Mirick O’Connell)
Despite stringent state and federal laws prohibiting sexual and other illegal harassment in the workplace, many employers and employees continue to be faced with situations and litigation involving such conduct. In 1996, Massachusetts General Laws c.151B (“Chapter 151B”) was amended to require employers to distribute written sexual harassment policies (with specific required provisions) to all new employees and to every employee on at least an annual basis. That law also encourages employers to provide sexual harassment training to all of their employees on a regular basis. Unfortunately, many employers still fail to take those steps, exposing themselves to legal liability and the prospect of substantial damages awards, including back wages for terminated employees, emotional distress, punitive damages and attorneys’ fees.
Moreover, many employees are not aware that they can be held individually liable for engaging in or aiding and abetting sexual harassment. In one recent case, Martin v. Irwin Industrial Tool Company, et al., No. 12-30048-KPN (D. Mass. May 3, 2012), the U.S. District Court for the District of Massachusetts held that rank-and-file employees (i.e., not only supervisors and managers) may be liable for harassment and retaliation under Chapter 151B. Interpreting the language of Chapter 151B, the Court concluded that any employee, regardless of his or her authority over other employees or relationship to the employer, may be held liable under Chapter 151B. In another recent case, Sobocinski v. United Parcel Service, et al., 34 MDLR 109 (June 26, 2012), which involved a male employee alleging that he was sexually harassed by his male supervisor, the MCAD’s Full Commission upheld the Hearing Officer’s decision, which not only found UPS liable, but found three managers individually liable, and affirmed the award of $50,000 in emotional distress damages to the complainant. Importantly, the MCAD also mandated six hours of discrimination, harassment and retaliation-prevention training for all of UPS’ supervisors and managers.
These two cases clearly show that it is in the best interest of Massachusetts employers (in fact all employers) to ensure that their managers and supervisors, as well as their rank-and-file employees, receive regular training on the prevention of discrimination, harassment and retaliation. When employers fail to properly educate their workforce on these issues or fail to “practice what they preach,” they risk significant liability for themselves and their employees.