Under Massachusetts law, all employees are protected from sexual harassment in the workplace. But what about alternative, non-employee workers, such as volunteers and independent contractors? Are they offered the same protection?
Massachusetts protects its workforce from sexual harassment through two different statutes. Chapter 151B is the primary recourse for victims of sexual harassment, and it provides extensive guidelines and procedures to deal with sexual harassment claims. An employee who believes that his or her rights have been violated must file a claim with the Massachusetts Commission Against Discrimination (MCAD) “within 300 days after the alleged act of discrimination.” After a claim is filed with MCAD, the well-defined administrative process will prevent most cases from ever reaching the courtroom.
Chapter 151B only applies to employers with six or more employees, however, and good public policy demands that there be a remedy for victims of sexual harassment in the small business setting as well. Thus Chapter 214, Section 1C, provides a separate cause of action for claims of sexual harassment, where a claimant can file suit directly in Superior Court if his or her rights are not protected by Chapter 151B. However, the secondary statute does not provide a loophole to bypass the Chapter 151B administrative requirements where that statute applies.
The Supreme Judicial Court (SJC) has held that an independent contractor is not an employee under Chapter 151B. Comey v. Hill, 381 Mass. 11 (1982). Similarly, a volunteer is also not entitled to approach MCAD for administrative relief. Lowery v. Klemm, 446 Mass. 572 (2006). It would appear that independent contractors and volunteers are just as vulnerable to the threat of sexual harassment as employees. One might assume that Chapter 214, Section 1C, would be applicable to these alternative types of workers, just like employees of small businesses. However, this is not necessarily true.
According to a federal district court case in Massachusetts, the scope of the employment relationship protected under Chapter 214, Section 1, is gleaned from the definition prescribed by Chapter 151B. That scope is limited to traditional employer/employee relationship, at the exclusion of the principal/agent status of an independent contractor. Vicarelli v. Business Intern., Inc., 973 F.Supp. 241 (D.Mass. 1997). Other traditional tort remedies are available to independent contractors. For example, interference with advantageous relations or infliction of emotional distress claims offer some protection.
The same can be said for volunteers who offer services without payment. The SJC has made it clear that volunteers are not eligible for protection under Chapter 214, Section 1. Lowery v. Klemm, 446 Mass. 572 (2006). This decision overturned a ruling by the court of appeals that extended the statutory protection to volunteers and student interns. Like independent contactors, volunteers must rely on other causes of action to find relief from sexual harassment in the workplace. While the SJC did not directly answer the question with regard to student interns, it is unlikely that Chapter 214, Section 1, will be interpreted to protect this class of worker.
The SJC has left it in the hands of Massachusetts legislators to determine whether independent contractors and volunteers should receive statutory protection from sexual harassment in the workplace.
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