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Is it Sexual Harassment?

May 8, 2019
A recent decision by the Massachusetts Commission Against Discrimination (MCAD) highlights a question with which many employers struggle in dealing with claims of sexual harassment - Is all inappropriate sexual behavior illegal sexual harassment? And does it have to be for an employer to do something about it?
In this case, the question was whether the behavior was severe and pervasive enough to subject the two women who filed the complaint with the MCAD to be legally protected under the Massachusetts sexual harassment law.  
The case began when two female employees of a personal training service sued, alleging workplace harassment. One woman claimed she was forced to quit over the issue.
However, after hearing the arguments, the MCAD commissioner decided that the complaint should be dismissed because the two employees had not established that the alleged conduct was sufficiently severe or pervasive enough to alter the terms or conditions of the women’s employment and create an abusive working environment.
The ruling recognized that while the two women proved they were subjected to unwelcome verbal conduct by a supervisor, based on gender, much of the behavior was not explicitly sexual or even sexual in nature. For example, one of the women alleged that the supervisor made frequent sexually inappropriate comments to her at work, but during the trial she could only give one specific example. 
While some of the supervisor’s comments could be viewed as sexual, the ruling noted that the fact that the two women were selling personal training sessions at a gym meant they were marketing physical fitness so discussions about a person’s body fitness were a normal part of the job, something one of the women admitted in her testimony. 
Still, there were examples in the case showing that behavior may violate an employer’s policy without  violating the harassment law.
For example, the supervisor’s comments advising the two women to flirt with the potential clients, telling them (the women) they should wear tight fitting clothes, and to ‘shake some ass,’ could be clearly viewed as sexual in nature and be deemed objectively offensive to a reasonable woman.  The supervisor also commented to both women that if they spent more time with him they would want to leave their male partners. 
But the MCAD ruling noted these were casual off-hand comments and not sufficiently severe or pervasive enough to create a hostile work environment under the law. The ruling also noted that they were sporadic and were not sexually explicit or demeaning, nor physically threatening nor humiliating and were not sufficiently pervasive to alter the employee’s working conditions. 
Like any good mystery with a final unexpected plot turn, this case contains a surprising dimension.
While the two women claimed these events occurred during a three-week period, causing one of them to cry uncontrollably, one to change her work schedule, and both to have nausea, the commissioner wrote that she did not credit their testimony as they seemed to be very composed and formal during the discussion of these issues. She noted that they only became highly animated when testifying about the discrepancies in rates of pay and the horrible business practices of the company.
Furthermore, one of the women was a general manager of a site and had a duty to take immediate remedial action, and a duty to report any sexual harassment to human resources, neither of which she did.
Final thoughts
Complicated facts make for challenging situations and outcomes. While the MCAD decision may minimize an employer’s threat of legal liability because the supervisor’s behavior was not bad enough to violate the law, an employer should still be concerned enough by the supervisor’s words to investigate and perhaps take disciplinary action under its own policy. 
Alternatively, the fact that the MCAD thought that the real focus of the case was the employee’s complaints about working conditions serves as a reminder that any investigation should try to get to the root cause of the issue and not limit itself to the initial issue raised in the employee’s complaint. Sometimes the complaint may be a red herring that an employee raises thinking it may be easier to proof or lead to a greater financial judgment than the real issue.     
Members may call the AIM Employer Hotline at 800-470-6277 to learn more about this or any other HR-related issue.
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