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Ask the Hotline | Severe and Pervasive Harassment

July 11, 2018
 
Question
 
What does the term “severe and pervasive” mean in the context of a harassment claim?
 
Answer
 
Dealing with complaints about sexual harassment raises two issues for Massachusetts employers - what the law requires and what the company’s sexual-harassment policy says.  
 
Every Massachusetts employer with six or more employees must issue a sexual-harassment policy to every new employee at time of hire and to all employees annually. For employers who don’t have a policy or have not issued it every year, there is an up-to-date model on the Web site of the Massachusetts Commission Against Discrimination (MCAD)
 
Anti-harassment law is based upon whether the behavior in question is “severe or pervasive.”
 
A recent MCAD decision highlights the impact of the severe and pervasive standard.
 
A former employee, a female, filed a complaint against an all-female workplace alleging sexual harassment. The woman claimed that during a six-year period of employment she was exposed to eye-rolling, offensive hand gestures, occasional comments about a co-worker’s anatomy, and crude language when referring to other employees. The complaint alleged that all these actions taken together constituted a hostile work environment. 
 
The MCAD hearing officer noted that, even if true, the behavior was not objectively offensive given that most of the all-female employees viewed it as inoffensive, non-sexual, and for the most part joking. The behavior was viewed as sophomoric and inappropriate, but not meant to intimidate, frighten or sexually harass. 
 
The hearing officer was also not “persuaded that this conduct was sufficiently severe and pervasive so as to humiliate, threaten, or interfere with former employee’s ability to perform her job or that she found the conduct subjectively offensive.” The ruling noted that the workplace atmosphere was full of discussions of personal and private matters, professional rivalries, questionable business practices and tension between staff competing for income.
 
The hearing officer ruled that “even if the conduct was found to be sufficiently pervasive to satisfy the definition of harassment, the former employee did not convince me that she was particularly distressed or offended by the conduct. She continued to work for the employer for many years and did not complain while there. In fact, she returned to work for the employer after several years away. The former employee never raised sexual harassment until after her resignation and long after she had stopped working there leading the hearing officer to believe that the former employee embellished her testimony to enhance her claim. 
 
Severe and Pervasive
 
So, what must a person show to demonstrate that a behavior is severe and pervasive?
 
According to the MCAD’s recently updated guidance, a complainant must prove that she was subjected to "a steady barrage of opprobrious [sexual] comment or abusive treatment" for the conduct to be considered pervasive.  Such treatment may involve a combination of physical and verbal conduct (unwanted groping or touching combined with profanity or sexual innuendo).
 
Sexual harassment experienced by others in the workplace may be relevant to the assessment of the conduct's pervasiveness. Conversely, a single-but-severe incident may establish a hostile environment, even if the conduct is not frequent or repetitive.
 
Purely verbal conduct, without a physical component, may be severe or pervasive enough to create a hostile work environment, though isolated conduct does not constitute sexual harassment. "A few isolated remarks over a period of time" are generally insufficient to meet the pervasiveness standard.
 
Chapter 151B (the Massachusetts anti-discrimination law) does not prohibit all use of profane or offensive language. A person must show that the unwelcome sexual conduct created an impediment to an employee's full participation in the workplace, altered the terms and conditions of her employment, or unreasonably interfered with her work performance.
 
Working conditions may be altered without a showing of a tangible job detriment. Thus, an employee may seek recovery for hostile environment sexual harassment even if she has not suffered an adverse job action such as termination, suspension, or demotion. Whether conduct interferes with an individual's ability to perform her job is essentially a question of fact based on the totality of the circumstances, including the nature, severity and pervasiveness of the conduct and the psychological harm to the employee.
 
Conduct that interferes with an employee's ability to do her job need not necessarily cause severe psychological harm or emotional distress to be actionable.
 
What does it mean for an employer? 
 
Employers should address whether the alleged behavior violated the company’s anti-harassment policy and, if so, what to do about it.
 
Every employer that receives an allegation of sexual harassment must investigate it as quickly as possible. The quicker the investigation, the more likely the company will be able to address the complaint or resolve the issue, thereby avoiding any costly legal fight over whether or not the behavior is severe and pervasive.   
 
Take steps to ensure that your employees understand the company culture toward harassment prevention, and train your employees on the details of the harassment policy and what to do if they believe they are being victimized by one or more harassers, including how to report it to the proper person(s). 
 
AIM members may call the AIM Employer Hotline at 800-470-6277 with questions about this or any HR- related matter. AIM also provides sexual harassment training and investigations.  
 
 
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