By Jack Merrill
The state’s highest court gave a major boost in 2001 to alleged victims of sexual harassment when it decided that years old conduct can be used to prove work-related sexual harassment lawsuits. The decision made it easier for employees to prove their cases and increased employers’ risks of facing expensive and time-consuming lawsuits.
Massachusetts courts are now far friendlier to sexual harassment claimants than those at the federal level, where employees have only six months from the time they experience and identify sexual harassment to file a discrimination complaint. In the Commonwealth, alleged victims face much more lax restrictions. They can argue that events from years past contribute to a pattern of hostility that, when combined with recent misconduct, establishes a sexually harassing environment.
The decision will likely increase the volume of sexual harassment lawsuits by simultaneously expanding options for employees and making it more difficult for employers to achieve early judgments in cases where allegations of harassment are aging. As a result, employers face increased risks in the workplace. Now more than ever, they must be diligent in quickly identifying and effectively dealing with sexual misconduct on the job.
In rationalizing its decision, the court failed to acknowledge the potential damage it caused to employers. It wrote that strict adherence to the six-month filing requirement for sexual harassment “is fair neither to the employee …nor the employer,” which might then face a lawsuit before having a chance to resolve the underlying problem internally. The court held that an offended employee can try internal resolution and, if it fails, use old events to support a long-term pattern of harassment if one incident of sexual impropriety occurred within six months of the complaint filing date.
The court’s theory redefines to some extent the accepted principle that long-term sexual misconduct can be actionable if events form a continuing pattern of harassment. Though it has always been true that a plaintiff can at times tie older events to newer ones and argue that the totality establishes a hostile work environment, it was generally accepted that harassment victims needed to file their claims within six months of the date they identified that hostility. Now, it appears that each isolated event of sexual misconduct restarts the six-month filing limitation. A victim might go a year or more without experiencing harassment, then argue that a new sexual incident, such as a joke, opens the door to a suit based largely on prior alleged misconduct.
Employers thus face an even more daunting task in the war against sexual harassment. They must ensure both that complaints are dealt with effectively (a duty that Massachusetts employers have long had) and that the victims of harassment are not exposed to even a hint of subsequent impropriety. Though the court did not eradicate the traditional employer defense that it responded reasonably in addressing a harassment complaint before suit was filed, it made clear that employers will normally need to go all the way to a jury to make that argument. They will, then, be forced to expend time and money defending even a winning case.
The Supreme Judicial Court decision makes it more important than ever for employers to maintain and distribute effective anti-discrimination policies and properly train management and others to identify and address sexual misconduct on the job. In all cases, complaints must be thoroughly and quickly investigated. Before action is taken, employers should consult with counsel to consider the legal options.
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