- the employee suffered intentional discrimination based on their sex;
- the discrimination was ‘pervasive & regular”;
- the discrimination adversely affected the claimant;
- the discrimination would adversely affect a reasonable person of the same sex; and (5) the employer was liable under respondeat superior.
Furthermore, the employee bears the burden of proving that the employer failed to provide a reasonable method for filing a complaint, or the employer knew or should have known that the harassment occurred, yet failed to remedy the situation.
Until now, the law has been unclear on what level of knowledge would be sufficient to hook the employer for sexual harassment. As such, the Court of Appeals for the Third Circuit took to task in Huston v. Proctor & Gamble Paper Products Corporation and fashioned a two-pronged test to decide when an employer has the requisite knowledge.
The Third Circuit held that an employee’s knowledge of sexual harassment may be imputed to the employer when the employee’s duties are such as to elevate him or her to the status of manager or supervisor. However, the court determined that “mere supervisory authority over the performance of work assignments by other co-workers” was not enough. The managerial position must also carry with it the ability to enforce work policies, such as sexual harassment in the workplace, in order to impute employer liability.
The court noted that its approach was consistent with the plain meaning of ‘management’ as set forth in various dictionaries. Thus, even though the Third Circuit’s decision is not binding in Massachusetts, it has far-reaching ramifications. It may be expected that other courts will follow suit and adopt the approach pioneered by the Third Circuit.
Both employers and employees alike need to be aware that sexual harassment goes beyond the traditional notions of a male supervisor confronting a female worker. Under Massachusetts law, any physical or verbal conduct of a sexual nature can constitute sexual harassment. The statute contains no reference to gender or sexual orientation.
Pleading a claim of hostile work environment may now prove easier for employees thanks to a recent decision by the Appeals Court of Massachusetts. On June 3rd, the court ruled that an employee could bring a hostile work environment claim against his former employer even though the claim did not appear in the original complaint.
Generally, two forms of sexual harassment exist: “quid pro quo” sexual harassment and “hostile work environment sexual harassment.”
Occasionally an employee will accuse a coworker or supervisor of improper conduct such as sexual harassment. These situations are difficult to deal with on several levels. To start, an employer must conduct a proper investigation of the allegations before deciding to terminate the accused employee. If the company fails to do this, it may be liable to the employee for damages.
If an employee complains about the actions of his supervisor or the company he works for, and is soon after terminated or demoted, he may have a claim against the employer for retaliation. Retaliation is a prohibited employment practice whereby employers punish employees for complaining about unlawful practices.
Employees seeking to bring claims against employers for intentional infliction of emotional distress may be barred by the workers compensation act. This act provides that employees effectively waive their rights to bring claims based upon common law such as intentional infliction of emotional distress or other personal injury actions for injuries that are covered by the Workers Compensation Act.