As music and beer flow freely this St. Patrick’s Day, employers have good reason to be aware of what “shenanigans” their employees may be up to.
Employers already know that sexual harassment in the workplace is illegal and can result in liability, but employers should also know that under some circumstances sexual harassment outside of the workplace can result in employer liability. Employers are liable for the harassment of employees by managers and persons with supervisory authority, regardless of whether the employer knows of the conduct. Employers are also responsible for harassment committed by non-supervisory employees where the employer knew or should have known about the harassing conduct and failed to take prompt, effective, and reasonable remedial action. As a result, an employer could find itself facing a claim for harassment based on conduct outside the workplace.
The Massachusetts Commission Against Discrimination (MCAD) uses the following factors to assess whether conduct outside the workplace constitutes sexual harassment under M.G.L. c. 151B for which an employer is liable:
- whether the event at which the conduct occurred is linked to the workplace in any way, such as at an employer-sponsored function;
- whether the conduct occurred during work hours;
- the severity of the alleged outside-of-work conduct;
- the work relationship of the complainant and alleged harasser, which includes whether the alleged harasser is a supervisor and whether the alleged harasser and complainant come into contact with one another on the job;
- whether the conduct adversely affected the terms and conditions of the complainant’s employment or
- impacted the complainant’s work environment.
To minimize the risk of liability, employers should be proactive in creating a harassment-free workplace and culture, and raise awareness about the responsibilities supervisors have in responding to inappropriate conduct. Employers can do this by conducting anti-harassment training and by distributing the company’s harassment policy. Distributing the company’s harassment policy isn’t just good practice, it’s the law. Massachusetts requires that employers with six or more employees not only have a sexual harassment policy and give it out to new employees when they start work, but also that an individual copy be distributed to each employee annually.
An employer’s commitment to prohibiting harassment extends to employer sponsored gatherings, including holiday parties where alcohol is served. When planning such events, consider reminding employees of their obligations with regard to harassment in advance, and limiting alcohol consumption through strategies such as using trained professional servers.
Contact a member of the Employment Law Group for more information on employer liability for outside of work behavior, responding to complaints of sexual harassment, and for assistance in creating workplace policies.