Legal Question in Sexual Harassment in Massachusetts
Sexual Harassment By Non-Employee. What can be done?
My girlfriend works for a somewhat large company in Massachusetts. Recently, she's been complaining to me about a customer who goes into her place of employment on a regular basis. He approaches women, offers them candy, and occassionally asks them to go to his house so he can show them some things... He has even touched my girlfriend in an ''unfriendly'' manner...
It has gotten to the point that when the customer is in the building, my girlfriend has to hide in the employee break room, in the office, or on the other side of the building. She has complained to her manager, however, nothing has changed. She is petrified to go into work lately because she knows this man will be there, but she can't quit her job either.
What else can be done, without fear of her losing her job? I realize there are laws in place top protect against something like this happening, but let's face it, employers can make it so you wanna quit.
If she files a police report and is able to obtain a restraining order, is her employer then responsible to ensure that the order is maintained should the customer attempt to enter the premises while she is working? Can she be fired because it puts too much of a burden on her supervisors and managers?
2 Answers from Attorneys
Re: Sexual Harassment By Non-Employee. What can be done?
In Massachusetts, a complaint against an employer can be filed for free with the Massachusetts Commission Against Discrimination and the EEOC. It sounds like your girlfriend has claim for damages against her employer for emotional distress as well as possible punitive damages if the employer was deliberately indifferent to the harassment she has experienced. Employers are also prohibited from retaliating against employees who complain. I generally recommend to employees in similar circumstances that they file a complaint. By filing a complaint, employees can gain protection against employer retaliation and can cause the harassment to stop.
�When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly. The employer should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment...� Policy Guidance on Current Issues of Sexual Harassment, EEOC Number N-915-050, 1990.
EEOC Guidelines clearly state that employers can be liable for the harassment of non-employees where the employer of the harassed employee �knows or should have known of the [harassment by the nonemployee] and fails to take immediate and appropriate corrective action.� EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. � 1604.11(e). Many legal cases have recognized that an employer is liable if it fails to take corrective action against a customer involved in sexual misconduct against an employee. Folkerson v. Circus Circus Enter., 107 F.3d 754, 756 (9th Cir. 1997); Menchaca v. Rose Records, Inc., 1995 WL 151847 (N.D. Ill. 1995); Powell v. Las Vegas Hilton, 841 F. Supp. 1024, 1028 (1992).
I have represented many employees in cases involving sexual harassment. I would be happy to mail you a copy of my newsletter specifically focused on the rights of employees who have experienced sexual harassment.
A skilled attorney can assist in preparing a forceful complaint with the MCAD. Often, employees who rely on the intake employees at the MCAD to help them file their complaint regret that they did not have help to more thoroughly prepare the complaint.
Please call if you would like to discuss this case. 617-566-3670
Re: Sexual Harassment By Non-Employee. What can be done?
You are correct that the law does indeed protect your girlfriend against the type of discrimination which she is encountering and also, unfortunately, correct about the potential for retaliation. Having said that, though, has your girlfriend taken things past her supervisor to perhaps the company's HR department? (Almost all large companies have an HR department...) Has she consulted her handbook about how to report a complaint of harassment? These are important steps because if she were ever interested in pursuing a claim, it may be important that she first have followed the company's guidelines for reporting harassment.
With respect to restraining orders, although a civil restraining order may be available, the type of restraining order that you are likely thinking about (under G.L. c. 209A) is likely not available because the law limits the issuance of such orders to certain types of relationships -- including dating relationships -- but not to the type of situation which you have described. (And, even if it did, I'm not sure that this would be the path she would want to travel.)
My firm's practice concentrates in employment law and I would be happy to speak with her further if she would like.
Evan
(617) 723-5630
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