Governor Charlie Baker recently signed an emergency measure granting $250,000 of new funding to the Massachusetts Commission Against Discrimination (“MCAD”). This action was taken in response to a greater influx of complaints to the agency, likely spurred by the growing “#metoo movement.”
The MCAD, which is similar to the federal Equal Employment Opportunity Commission (“EEOC”), investigates complaints of discrimination including, but not limited to, discrimination in the context of employment, housing and public accommodations. The “#metoo movement” has raised public awareness of conduct that may constitute sexual harassment in the workplace and changed public opinion about the acceptability of such conduct. In large part, social media has contributed to the heightened recognition of sexual harassment (which is a form of discrimination) and many other types of discrimination. As the public discourse grows, it is ever more widely understood that both explicit and implicit biases in the workplace can and do operate to the detriment of women, employees of color, and other persons belonging to groups subject to protection under current law.
In reviewing an employment discrimination complaint, two things that an MCAD/EEOC investigator will likely request are a copy of the employer’s personnel manual, and a record of any investigation the employer might have conducted concerning the alleged discrimination. With this in mind, all employers should thoroughly review their handbooks and discrimination policies and revise them, if necessary, to comport with current law. Specifically, employers should be sure to have clear, contemporary policies and procedures that:
- Protect employees from discrimination in the first place, by providing administrators and employees at all levels with guidance and training on what type of speech or conduct might constitute sexual harassment, and the importance of refraining from such harassment;
- Help employees feel safe when complaining of discrimination, by emphasizing the right to report such conduct, providing reassurance that there will be no adverse consequences (i.e. “retaliation”) as a result of bringing a complaint, and offering, when possible, multiple avenues to report discrimination;
- Take complaints seriously, by conducting an impartial investigation, without preconception, both to ensure that any harassment is unearthed when it occurs and to limit employer liability if claims are ultimately unsupported; and
- Stop harassment promptly and effectively by taking appropriate actions, up to and including termination of the harasser’s employment.
Additionally, employers should give careful thought to whether or not they investigate a sexual harassment or discrimination complaint internally (by Human Resources or in house counsel), or externally (by an outside party, which is usually an attorney who focuses in these types of investigations).
Also, employers should strictly follow their anti-discrimination/anti-harassment procedures — in all instances, regardless of the alleged harasser’s rank, prestige or money-generating value to the business enterprise.