Understanding the Supervisor’s Important Role in Prevention
By KARINA L. SCHRENGOHST, Esq.
Karina L. Schrengohst
Toward this end, supervisors play an important role in identifying, preventing, and reporting sexual harassment. And in Massachusetts, supervisors have even more incentive to be vigilant because they can be held individually liable for inaction when they have knowledge of sexual harassment but fail to act.
Sexual harassment is a form of sex discrimination, which includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Supervisors need to be on the lookout for two types of sexual harassment: (1) quid-pro-quo harassment, and (2) hostile-work-environment harassment.
Quid-pro-quo harassment occurs when an employee’s submission to or rejection of sexual advances, requests, or conduct impacts a condition of his or her employment such as receiving or being denied a raise, a promotion or demotion, continued employment or termination, or a change of duties, hours, or compensation. Hostile-work-environment harassment occurs when unwelcome sexual advances, requests, or conduct are severe and pervasive enough to alter an employee’s working conditions or to interfere with work performance.
Although a single incident, if severe enough, may establish a hostile environment, typically, an isolated incident is not enough to show a hostile environment, and an employee must prove there was repeated conduct. Examples of conduct of a sexual nature include sexually suggestive remarks, jokes, gossip, or e-mails; displaying sexually suggestive pictures or cartoons; requests for sex; and inappropriate touching. Harassers can be males or females, supervisors or co-workers. Victims of sexual harassment can be intended or unintended, of the opposite sex or the same sex of the harasser.
Eliminating sexual harassment in the workplace begins with taking preventative steps. Some steps employers can take toward prevention are creating and implementing a policy against sexual harassment, communicating with employees about this policy by providing sexual-harassment training, and establishing a complaint and investigative process. Under Massachusetts law, employers with six or more employees must adopt a written policy against sexual harassment. Employers should also regularly review, and update when necessary, their sexual-harassment policy.
According to the Mass. Commission Against Discrimination, a sexual-harassment policy should include:
• A statement that sexual harassment in the workplace is unlawful;
• A definition and examples of sexual harassment;
• A reporting procedure, with several individuals identified as authorized to receive complaints;
• A statement of potential consequences for employees who are found to have committed sexual harassment;
• A statement that it is unlawful to retaliate against an employee who has complained about sexual harassment, filed a lawsuit, or participated in an investigation; and
• Information about state and federal employment-discrimination enforcement agencies. This policy should be presented to all new employees at the start of employment and posted in the workplace.
Adopting a written policy against sexual harassment suffices to meet legal requirements. Employers, however, should also conduct trainings on a regular basis for all employees. And additional trainings should be conducted for supervisors to ensure they are familiar with the company’s policy, know how to recognize what constitutes sexual harassment, and understand the appropriate steps to take when sexual harassment is identified or an allegation is reported. Employers have even more incentive to train supervisors because employers are vicariously liable for the conduct of employees in supervisory roles.
Also, under Massachusetts law, supervisors must be mindful that Massachusetts courts have found supervisors individually liable for inaction when they have knowledge of sexual harassment, but fail to act. Thus, it benefits both the employer and the supervisor to conduct additional trainings for supervisors.
Employees look to supervisors for guidance on how to perform their job duties. They also look for direction on how to behave in a particular workplace; therefore, supervisors should model appropriate behavior. When in doubt, they should err on the side of being conservative. A supervisor’s reaction to conduct that can be construed as harassment or an allegation of sexual harassment communicates to employees an employer’s commitment (or lack thereof) to eliminating sexual harassment in the workplace.
Any allegation of sexual harassment brought to a supervisor’s attention must be treated seriously, documented, and reported in a timely manner. Employers should have an investigative process they uniformly use for all investigations, and the investigation should conclude with a clear resolution.
Supervisors, in particular, are in a prime position to prevent sexual-harassment claims by being on the lookout for signs of sexual harassment and by clearly communicating that such harassment will not be tolerated. They can do this by taking immediate action when an employee makes a complaint. Employers would be wise to arm their supervisors with the information they need to identify, prevent, and report sexual harassment to help ensure they have harassment-free workplaces.
Karina L. Schrengohst, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned, boutique, management-side labor and employment-law firm; (413) 586-2288; kschrengohst@royalllp.com
