The terrain of harassment is a very dangerous place to stand. An avalanche of liability could cover you without any warning. In addition to sexual harassment, employers now must be worried about many different types of harassment claims. Why is the threat of a harassment complaint so scary for employers? One reason is that a harassment law suit of any kind can bring large financial liability and embarrassment to the company. Hostile work environment claims are highly fact specific and require careful investigation. Another reason for trepidation is that harassment is a rapidly expanding area of the law that is constantly shifting and developing, so you are not always sure of the appropriate standards. Further, to prevent harassment, you have to keep a tight chain on employee behavior, which often seems an impossible task. It is an unfortunate fact that even though your company may strive diligently to prevent harassment, it may still be occurring in your workplace.

Despite the prevalence of harassment claims, there is a wealth of misinformation about the type of conduct that constitutes harassment and what employers can do to prevent it.

Here’s a run down of the different categories of prohibited harassment under both state and federal law:

• sexual harassment;
• racial harassment;
• religious harassment;
• national origin harassment;
• disability-based harassment;
• age harassment;
• same sex harassment;
• sexual orientation harassment;
• hostile work environment harassment.

Most workplace policies on sexual harassment list the usual behaviors to avoid: touching, inappropriate talk, off color jokes. A recent case from Massachusetts may add a new obligation to those policies—looking, or more precisely, leering. The lower court ruled that staring at the plaintiff secretary's breasts by her supervisor did not make the workplace atmosphere hostile and dismissed the case. The U.S. Court of Appeals for the First Circuit disagreed, finding that regular staring did rise to the level of sexual harassment and could create a hostile work environment as a matter of law. The appeals court found the staring was more than unprofessional and isolated and could not accept that: '...a man’s repeated staring at a woman’s breasts is to be ordinarily understood as anything other than sexual.' While not accompanied by sexual comments or behavior, the supervisor’s staring was regular and repeated and had been noted by others in the workplace. With this case, the conduct rising to the level of sexual harassment may be expanded.

Remember, Massachusetts law prohibits discrimination in the workplace. Sexual harassment is a form of sex discrimination. An employer is liable for the actions of its managers and supervisors if they commit sexual harassment. Massachusetts law requires employers with six or more employees to adopt a written policy prohibiting sexual harassment. The employer's policy must include notice to employees that sexual harassment in the workplace is unlawful and that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment. The policy should also assert the employer's commitment to investigate any complaint of sexual harassment. Massachusetts law also encourages but does not require employers to conduct education and training programs on sexual harassment for all employees on a regular basis.

FINAL THOUGHT
Unlawful harassment in the workplace comes in many forms and with many different faces. New developments and cases change the obligations and responsibilities for employers. Keeping your sexual harassment policy up to date and enforced in the workplace could reduce your liability.

We can help. For more information about your obligation to provide time off from work, please see our publication titled: 'The Employers Guide to Understanding Massachusetts Workplace Law.' To request a copy, please contact us.