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Employment Law: Discrimination and Sexual Harassment
Discrimination
Both the Massachusetts and federal anti-discrimination laws prohibit discrimination in the workplace, in places of public accommodations, and in the furnishing of credit, housing, or mortgage lending. Additionally, both Massachusetts and federal laws prohibit sexual harassment and/or the maintenance of a hostile workplace environment. The Massachusetts Commission Against Discrimination (“MCAD”) is the administrative agency that investigates and conducts hearings as to discrimination and sexual harassment claims. The MCAD also prosecutes discrimination matters, according to its police powers, on behalf of the Commonwealth of Massachusetts. The Equal Employment Opportunity Commission (“EEOC”) is the MCAD’s federal counter-part administrative agency. Bennett & Belfort, P.C. handles a wide variety of discrimination and harassment claims at both the MCAD and EEOC, as well as in all federal and state courts of the Commonwealth of Massachusetts. Employers who discriminate against employees may be liable for back pay, front pay, emotional distress, punitive damages, and attorneys’ fees.

The following protected groups or classes are afforded protection under the law:

* Race and Color
* Ethnicity, Ancestry or National Origin
* Age
* Gender/Sex
* Transgender
* Sexual Harassment/Hostile Work Environment
* Pregnancy
* Veteran Status
* Disability/Handicap or Mental Illness
* Religion; and
* Same Sex and Sexual Orientation
* Genetics

Massachusetts is an "at will" employment state. The employment relationship can end at the election (or “will”) of either the employee or employer, at any time, for any lawful reason. However, it is illegal for an employer to engage in an adverse employment action against an employee based on the employee’s membership in a protected group. Adverse action can take many forms but includes: failure to hire; diminished title or grade; reduction in management responsibility; a demotion; discipline (e.g. written warning); reduction in pay or benefits; negative treatment; or termination. It is only those employees that are members of a protected group that qualify for protections under the discrimination laws. It is also a violation of law for an employer to retaliate against an employee who complains about, gives notice of, opposes, reports, or speaks out against discrimination.

Under Title VII of the Civil Rights Act of 1964 and the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B), it is unlawful to discriminate against any employee or applicant for employment because of his or her membership in a protected group. Both state and federal law prohibit discrimination as well neutral job policies that disproportionately affect members of a protected group in a negative way (disparate impact).

Discrimination can come in many forms, from the most obvious to the extremely subtle. For example, “implicit bias” occurs when someone consciously rejects stereotypes, yet unconsciously holds negative associations in his or her mind and acts on those negative associations in treating an employee. Employers may be held liable for conduct that creates an intimidating, hostile, or offensive work environment or that interferes with an employee's work performance as long as it relates to an employee’s protected class.

If you would like further information regarding discrimination law in Massachusetts, or you have a specific legal issue involving workplace discrimination or harassment that you wish to discuss with our attorneys, please call our office at (617) 577-8800 or email dbelfort@bennettandbelfort.com or tbennett@bennettandbelfort.com.

Discrimination Based Upon Race, Ethnicity, National Origin
Examples of conduct that evidences discrimination based on race, ethnicity or national original include:

* Ethnic slurs
* Racial "jokes"
* Offensive or derogatory comments
* Other verbal or physical conduct based on an individual's race, color, or national origin
* Offering higher pay to non-minority workers
* Offering better jobs to non-minority workers

An employer may also violate state and federal law by excluding minorities from positions or groups of employees, such that certain jobs are predominately held by individuals of a certain race, color, or national origin. In fact, race discrimination may be actionable even where no employment relationship yet exists. For example, during the recruiting process, a request for pre-employment information regarding an applicant's race that is utilized as a basis for making selection decisions may also constitute evidence of discrimination.

If you would like further information regarding discrimination law in Massachusetts, or you have a specific legal issue involving workplace discrimination or harassment based on race, ethnicity or national origin that you wish to discuss with our attorneys, please call our office at (617) 577-8800, or email dbelfort@bennettandbelfort.com or tbennett@bennettandbelfort.com.

Age Discrimination
Both Massachusetts (M.G.L. 151B) and federal laws (Age Discrimination in Employment Act and the Older Workers Benefit Protection Act) prohibit employers from discriminating against employees because of their age. These laws prohibit employers from taking adverse employment action against an employee age 40 and over with respect to any term, condition, or privilege of employment based on the employee’s age. Adverse employment action may include: targeting older workers for layoff, reduction of salary, demotion, change of title, discipline, reduction of hours, or giving older workers less pay or less favorable job assignments.

Often, age discrimination cases do not involve direct evidence of discrimination such as an age-related derogatory epithet or comment (e.g. that the company wants a more “youthful” workforce). Instead, age bias is frequently displayed by more subtle comments about an employee, like “[He or she] cannot do things as quickly or as well as [he or she] used to.”

The most common types of age discrimination cases involve indirect proof of discrimination. Identifying indirect proof of age discrimination might involve examining data relating to layoffs, including comparisons of how younger and older workers are treated in a layoff; determining if an employer is systemically trying to eliminate older workers; and exploring whether an employer, after supposedly laying off employees, replaces the departing employees with substantially younger workers.

Employers who legitimately terminate workers who are 40 years of age or over still need to proceed with caution. This is because even an employment practice or policy that is not intended to be discriminatory, but has a disproportionately adverse effect or impact on members of a protected class, may still be considered a violation of law. Bennett & Belfort, P.C. attorneys routinely consult with statistical experts who evaluate age related data and layoff information.

If you would like further information regarding discrimination law in Massachusetts, or you have a specific legal issue involving workplace discrimination or harassment based on age that you wish to discuss with our attorneys, please call our office at (617) 577-8800 or email dbelfort@bennettandbelfort.com or tbennett@bennettandbelfort.com.

Gender Discrimination/Sex Discrimination
Massachusetts General Laws, Chapter 151B, Title VII of the Civil Rights Act of 1964, and the Massachusetts Equal Pay Act (Massachusetts General Laws Chapter 149, § 105A) protect against discrimination in the workplace based upon gender/sex. Gender discrimination is broad. It includes sexual harassment, hostile work environment and disparate treatment claims. Adverse action in the context of a gender discrimination claim may include: wrongful termination upon return from maternity leave; unwelcome touching; gender related comments; failure to hire or promote some because of their gender; giving preferential treatment to persons of the opposite gender; and unequal pay based on sex.

Sexual Harassment
Sexual harassment is typically considered a sub-set of gender discrimination or discrimination based on gender. There are two main types of sexual harassment claims: "quid pro quo" sexual harassment and "hostile work environment" sexual harassment. They may occur independently or at the same time. Both are violations of law.

Quid Pro Quo Sexual Harassment
Chapter 151B defines "quid pro quo" sexual harassment as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions.”

Quid pro quo harassment occurs when an employee with authority or control over the terms and conditions of another employee's work “offers” them a work benefit or advantage in exchange for sexual favors or gratification. Employees may be denied a work benefit or advantage because of their rejection of requests for sexual favors. Alternatively, the submission to unwelcome sexual advances also results in quid pro quo harassment given that the terms or conditions of one's employment are invariably adversely impacted.

Simply put, if an employer threatens to take adverse action against a subordinate employee (demote them, reduce their salary, fail to promote them, or refuse to raise their salary) for failing to perform sexual favors, the employee is the victim of quid pro quo sexual harassment

Hostile Work Environment
Chapter 151B defines "hostile work environment" harassment as: "sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment."

Hostile work environment claims are usually based on severe actions (e.g. inappropriate touching) or pervasive conduct or statements (e.g. multiple lewd sexual comments or jokes) directed at an employee or in an employee’s presence. Such conduct routinely impacts an employee’s emotional state and ability to function in a professional environment. A hostile work environment interferes with an employee’s right to be free of harassment on the job and invariably interferes with the ability of workers to perform job duties at their best.

Sexual harassment is not limited to any one gender. The victim of sexual harassment may be either female or male.

Retaliation
It is illegal for an employer to retaliate by taking adverse action against an employee who reports or files a discrimination or sexual harassment complaint (with her/his employer, with a governmental agency, and/or with a court). It is also illegal for an employer to retaliate by taking adverse action against an employee who participates in a discrimination or sexual harassment investigation, or who assists another employee in pursuing a discrimination or sexual harassment complaint.

In many instances, an employee may complain about a situation that may otherwise be a relatively weak discrimination or sexual harassment claim, but the employer’s actions in response to the complaint may form the basis for a strong retaliation claim. Therefore, employers who are aware of a discrimination or sexual harassment claim (or a potential discrimination or sexual harassment claim) must act carefully, in order to avoid the appearance of taking adverse action against an employee who might be protected under the law.

If you would like further information regarding sexual harassment law in Massachusetts, or you have a specific legal issue involving sexual harassment or a hostile work environment, please call our office at (617) 577-8800 or email dbelfort@bennettandbelfort.com or tbennett@bennettandbelfort.com.