Other Bulletins

January 2003
Employment Law Newsletter

Developments at the MCAD
by Mary Jo Kennedy, Esq.

Increased Time Period for Filing MCAD Claims

Recently, the Legislature extended the time period for filing discrimination claims at the Massachusetts Commission Against Discrimination (“MCAD”) from six months to 300 days. With this change, the time frame for filing claims with the MCAD now mirrors the time period for filing claims with the U. S. Equal Employment Opportunity Commission. The new time frame applies to claims arising after November 5, 2002.

This longer time period applies to all claims of discrimination and applies to employers with six or more employees. Employers with less than six employees may be subject to liability for sexual harassment under a separate state law and may be subject to an even longer period for bringing claims.

Particularly with a longer time period within which individuals may file discrimination claims at the MCAD, employers should keep key documents related to a potential discrimination claim for at least one year. Employers should also keep a record of key witnesses who leave the company (names, addresses, and telephone numbers and where they went). These documents should be kept separate from an employee’s personnel file. By maintaining these records, employers should be in a better position to defend claims.

New MCAD Guidelines on Sexual Harassment

In October, 2002, the MCAD issued new Sexual Harassment Guidelines (“Guidelines”). According to the MCAD, the Guidelines were created to provide lawyers, employers, employees, and the public with an understanding of what constitutes sexual harassment in the workplace and of employers’ obligations to remedy and prevent harassment in their workplace. This is only the second time the MCAD has issued guidelines. The MCAD’s first guidelines were issued in 1998 and related to handicap discrimination. In 1988, the Equal Employment Opportunity Commission issued guidelines regarding its interpretation of federal law on sexual harassment.

What is sexual harassment

The Guidelines are not laws themselves, but are the MCAD’s interpretations of Massachusetts law on sexual harassment. The MCAD did not attempt in the Guidelines to explain how state law differs from federal law. The Guidelines define two types of sexual harassment (“quid pro quo” and “hostile work environment”), describe when employers are liable for harassment, and describe when individuals are liable for harassment. The Guidelines also include a discussion of same-sex sexual harassment and of an employer’s liability for sexual harassment occurring outside of the workplace.

Sexual harassment policies

The Guidelines contain a section on an employer’s obligation to adopt a written sexual harassment policy. Six years ago, the Legislature amended the discrimination laws to require Massachusetts employers with six or more employees to adopt and post in the workplace a policy against sexual harassment. By that amendment, the Legislature also encouraged employers to conduct sexual harassment training. The Guidelines reiterate and reinforce the suggestion that employers should conduct training programs on sexual harassment for all employees on a regular basis. Proper training may reduce or eliminate liability for sexual harassment in the workplace.

In 1996, the MCAD prepared a model sexual harassment policy for employers to use in drafting their sexual harassment policies. Such a policy must include, among other statements, examples of sexual harassment. The Guidelines add an additional suggestion that the workplace policies should include a statement that the employer prohibits the dissemination of sexually explicit voice mail, e-mail, graphics, downloaded material or websites in the workplace. With the widespread use of workplace computers, the potential for inappropriate e-mails and Internet access has increased and may pose a significant risk to employers. The specific prohibition contained in the Guidelines has not yet been added to Massachusetts law regarding what must be contained in a sexual harassment policy. Although the law has not yet been amended, employers would be well advised to change their policies to incorporate this language. In any event, employers should review their sexual harassment policies on an annual basis to incorporate any changes in the law regarding sexual harassment.

Handling complaints of sexual harassment

The Guidelines also address the MCAD’s view of the proper handling of sexual harassment complaints. The Guidelines contain recommendations on how to conduct an investigation. Some of the MCAD’s recommendations are listed below.

DO 

• identify more than one person to receive complaints
• identify individuals of both sexes to receive complaints
• allow complaints to be communicated orally
• investigate as soon as practicable
• take notes and collect documents
• keep the investigation as confidential as possible
• keep the person making the complaint and the alleged harasser informed of the status of the investigation during the process
• prepare a final written report detailing the steps the investigator took and explaining any conclusions made

DON’T

• require an employee to complain directly to the person alleged to have engaged in the sexual harassment
• insist on the employee making a written complaint before starting an investigation
• fail to investigate a complaint of harassment because the employee asks that it not be investigated
• instruct an employee not to file a complaint with the MCAD or EEOC or not to cooperate in such an investigation
• reassign the complaining employee while the investigation is pending unless the employee requests the reassignment
• promise absolute confidentiality to the complainant, the alleged harasser or other witnesses

This section of the Guidelines is advisory in nature and not mandatory. However, as the Guidelines indicate, an employer who conducts a prompt and thorough investigation and takes appropriate remedial action may, in certain circumstances, prevent or minimize liability.

The Guidelines also state that an employer has the right to take appropriate action against an employee who makes a false or bad faith claim of sexual harassment. In analyzing whether a person has made such a claim, care should be taken to avoid having any discipline for filing a false claim be characterized as retaliatory.

The Guidelines state that a written report should be made of all sexual harassment investigations. The Guidelines are silent on whether the report would be subject to disclosure in a MCAD or EEOC action and the effect of a failure to prepare such a report. Attorneys representing employees will take the position that these reports must be disclosed. Although the matter has not been litigated, the MCAD and the EEOC will likely take the position that each claimant is entitled to obtain the written report. An employer’s written report summarizing its investigation and the conclusions reached will be an important document in any discrimination action. Given the significance of this report, employers should be sure that anyone who conducts an investigation of alleged harassment has been trained to do so. Employers should obtain advice from counsel on how to investigate claims and to prepare documentation of its investigation so that claims can be handled fairly and potential exposure can be reduced.

If you would like to discuss how the Guidelines affect your particular workplace or obtain more information on how to conduct an investigation or revise your sexual harassment policy, please contact any of the following attorneys in our Employment Law Practice Group: Mary Jo Kennedy (413) 272-6242; Katy Robertson (413) 272-6215; and Debbie Ferriter (413) 272-6249.