Elena J. Despotopulos
In the wake of the #MeToo and #TimesUp Movements, as well as the highly publicized charges against people such as Harvey Weinstein and Kevin Spacey, sexual harassment is very much in the public conversation. Business owners should take this shift in conversation to reflect on their business’s harassment policies and to consider if it is compliant with applicable laws. And if such a policy does not exist, businesses should consider implementing one.
When To Implement a Sexual Harassment Policy
In Massachusetts, an employer with 6 or more employees must have a policy against sexual harassment and provide a copy in writing to all employees, under Massachusetts law. Mass. Gen. Laws ch. 151B, §§ 1, 3A. It is sound business practice for all employers in the state to have a sexual harassment policy, because such policies can clearly state the type of conduct and behavior that employers will not tolerate and can also inform employees of what to do if they are being sexually harassed. Employers outside of Massachusetts should check their state’s laws and regulations to determine their specific requirements.
Under Massachusetts law, all sexual harassment policies must include the following:
A statement that sexual harassment in the workplace is unlawful;
A statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment, or for cooperating in an investigation of a complaint for sexual harassment;
A description and examples of sexual harassment;
A statement of the range of consequences for employees who are found to have committed sexual harassment;
A description of the process for filing internal complaints about sexual harassment and the work addresses and telephone numbers of the person or persons to whom complaints should be made; and
The identity of the appropriate state and federal employment discrimination enforcement agencies, and directions as to how to contact such agencies.
Mass. Gen. Laws ch. 151B § 3A(1).
Sexual harassment policies must also be provided in writing to all employees, either annually or upon an employee’s start of employment. Mass. Gen. Laws ch. 151B, § 3A(2).
Why A Business Should Implement a Sexual Harassment Policy
While businesses with 6 or more employees must have a sexual harassment policy, all employers in Massachusetts should implement these policies. An employee is free to bring a claim against the employer to appropriate state and federal employment discrimination enforcement agencies, regardless of whether the employer has a written policy. An employer with a policy is able to follow the written process for filing and investigating complaints, and this can help an employer who is facing a claim in front of an agency or a court. Without a policy, employers will have a difficult time being able to prove that it took all appropriate or required actions if an employee files a complaint with an agency or a court.
Massachusetts courts have developed a “reasonableness standard” when considering an employer’s liability for the sexual harassment claims of employees. Courts will ask whether the employer took prompt, effective, and reasonable action. Modern Cont’l/Obayashi v. Mass. Comm’n Against Discrimination, 445 Mass. 96, 106 (2005). Employers may be held liable if the employer fails to respond reasonably to acts of sexual harassment that the employer is aware of, or of which the employer should reasonably be aware. Id. at 108. By having a written sexual harassment policy, and following that policy, employers are better able to demonstrate they responded reasonably to sexual harassment in the workplace.
Employers should also implement a sexual harassment policy in order to protect employees and to foster a safe and healthy workplace environment. All employees can be sexually harassed, and it is in the best interest of all employers to implement and use a policy to protect employees.
The Massachusetts Commission Against Discrimination has published guidelines and a sample sexual harassment policy that is free to download. For more information please visit: https://www.mass.gov/service-details/about-sexual-harassment-in-the-workplace.