Articles Posted in Sexual Harassment

Overview: In Osorio v. Standhard Physical Therapy, Bulega, Tambi, the MCAD found in favor of the Complainant and awarded back pay plus emotional distress damages on her claims of sexual harassment and retaliation. There was credible evidence that Respondent Bulega, the business manager at the physical therapy office, began harassing the Complainant by smacking her behind several times a week, putting his hand down her shirt, snapping her underwear, making vulgar statements, and sending suggestive text messages. In addition, the Complainant once found Respondents Tambi and Bulega watching pornographic videos in the front area of the office.

The hearing officer found the Complainant’s testimony to be “extremely believable,” noting that she was clear and consistent throughout the proceedings. The evidence showed that the Complainant had been subjected to humiliating, unwelcome sexual harassment for a protracted period. Additionally, there was “no doubt” that the Respondents were on notice of the Complainant’s protected activity of complaining about sexual harassment but terminated her anyway, with a clear causal connection between those events. The hearing officer also found Respondents Bulega and Tambi individually liable.

Overview: In Martins v. Isabel’s Pizza DBA Papa John’s Pizza, the MCAD found in favor of the Complainant and awarded emotional distress damages with 13 weeks of back pay. The Complainant, who at the time was a high school student working as a pizza-maker for a Papa John’s franchise, brought claims of sexual harassment and constructive discharge against the franchise operator. She had received increasingly sexually suggestive text messages from her manager; eventually, the manager cornered her at the end of a night shift and groped her.

The manager was fired and was subsequently charged with indecent assault and battery, which resulted in a plea deal. Shortly after the incident, the Complainant learned that two of the manager’s cousins had come to the business looking for her, which she interpreted as a threat. The hearing officer determined that the events were clearly sufficiently severe and pervasive to create a hostile work environment and that the Respondent was vicariously liable. Additionally, the potential threat of workplace violence coupled with the employer’s insufficient response meant that the Complainant had been constructively discharged.

Overview: In Swenson v. Moini, the MCAD found in favor of the Respondent and dismissed the complaint alleging gender-based discrimination and sexual harassment. The Complainant, the bookkeeper and office manager within a dental practice, claimed that a partner at the practice had created a hostile work environment through sexual harassment. The Complainant ultimately waived her claim against the corporation and pursued the allegations against the individual Respondent only.

In dismissing the complaint, the hearing officer determined that the allegations of hostile work environment sexual harassment were untimely. Furthermore, the conduct was not objectively offensive and therefore did not support a hostile work environment claim. Moreover, the Complainant failed to show that she was particularly distressed or offended by the Respondent’s behavior, as she continued to work for the Respondent for several years and did not complain.

Overview: In Phillips v. Electro-Term-Hollingsworth, the MCAD found in favor of the Complainant and awarded back pay plus emotional distress damages for a sexual harassment claim against the Respondent electronic wiring manufacturer. The Complainant, who worked briefly at the Respondent company as a wire harness assembler, had asked coworkers to stop speaking graphically about sex acts in her presence. In response, those coworkers engaged in increasingly threatening behavior to which the Complainant’s superiors provided a limited and unhelpful reaction.

Even though the hearing officer found that the Complainant embellished some of her factual testimony, the officer determined that coworkers did indeed conduct repeated vulgar discussions of sexual acts within earshot of the Complainant and threatened her after she reported that conduct. The employer had a duty to inquire into the specific allegations and failed to conduct a thorough investigation. The hearing officer further concluded that the Complainant’s protected activity of reporting the harassment was the primary reason she had been threatened by termination, and the work environment was sufficiently hostile to support a constructive discharge claim.

Overview: In Canton v. Biga Wholesale, Martin, etc., the MCAD found in favor of the Complainant, awarding back pay and emotional distress damages for claims of sexual harassment and retaliation. The Complainant, who worked in bread production for Biga’s multiple bakery entities, credibly testified that her direct supervisor began making advances toward her. The Complainant rebuffed these advances, at which point they intensified to include unwanted grabbing/kissing and an offer by the supervisor to credit the Complainant for working a shift if she went home with him. The Complainant’s supervisor subsequently reduced her hours after she continued to reject his advances. After hiring an attorney and notifying company leadership of these incidents, the Complainant was eventually laid off.

The hearing officer concluded that the Complainant was the target of a “relentless campaign” of unwanted sexual propositions and that she suffered adverse changes in the terms of her employment as a result of rejecting those advances. Furthermore, the Complainant was subjected to a hostile work environment because her supervisor’s conduct so clearly crossed the boundaries of a professional relationship. The hearing officer also found that the Complainant was laid off in retaliation to objecting to such conduct and that the actions of the company’s personnel officer in response were so egregious as to make her individually liable.

Overview: In Pavoni v. Wheely Funn Inc., the MCAD found in favor of the Respondent and dismissed the complaint alleging quid pro quo sexual harassment and retaliation against a roller skating rink owner. The Complainant did establish a prima facie case based on the temporal proximity between her rejection of the business owner’s advances and her termination, which were less than four apart. The Respondent’s staff provided credible testimony, however, that the Complainant had chronic problems with tardiness, frequent breaks, and inattentiveness.

The hearing officer further found that the owner did not “behave like a scorned suitor” after finding out that the Complainant did not reciprocate his feelings, but instead “assured her that her rejection of a personal relationship would not affect her job, turned his attention to dating other women, and promptly met his current wife.” Failure to meet job expectations was what ultimately led to the Complainant’s termination.

Sexual harassment claims often involve salacious allegations that can form the basis of a punitive damages award, the purpose of which is not to compensate the victim but to punish the wrongdoer and thus deter similar misconduct in the future. Fox’s payment to Gretchen Carlson of reportedly $20 million to settle sexual harassment allegations against its ousted founder, Roger Ailes, recently brought workplace sexual harassment into the limelight. According to her complaint, among other incidents, Ailes allegedly told Carlson: “I think you and I should have had a sexual relationship a long time ago and then you’d be good and better and I’d be good and better … sometimes problems are easier to solve [that way].” The size of the settlement suggests that Fox may have been concerned about a jury awarding Carlson significant punitive damages.

More recently, the Massachusetts Supreme Judicial Court (SJC) in Gyulakian v. Lexus of Watertown had the opportunity to clarify in what circumstances a jury may award punitive damages in sexual harassment cases under the Fair Employment Practices Act, namely M.G.L. c. 151B, §9. There, the jury returned a verdict in favor of the plaintiff of $40,000 in compensatory damages and $500,000 in punitive damages. In response to the defendants’ Motion for Judgment Notwithstanding the Verdict (JNOV) pursuant to Massachusetts Rule of Civil Procedure 50, the trial judge wiped out the jury’s punitive damages award and upheld the compensatory award. Both parties appealed and the SJC granted direct appellate review.

Overview: In Harper v. Z2A Enterprises, the MCAD found in favor of the Complainant, awarding emotional distress damages and three months of back pay in a sexual harassment claim against the operator of the Half Time Sports Bar and Grill. The Respondents failed to appear at the hearing, and an Order of Entry of Default was noted on the record.

The Complainant put forth unrebutted evidence establishing that she was sexually harassed and subjected to a hostile work environment by the conduct of her immediate supervisor. The “extremely abusive and degrading behavior” included physical assaults, verbal abuse, sexual taunts, and sexually suggestive comments in the presence of customers and subordinates. The hearing officer found that the Complainant was constructively discharged because she legitimately believed that there was no recourse but to quit.

Overview: In Picco v. Town of Reading, the MCAD found in favor of the Complainant and awarded emotional distress damages. This is the MCAD’s second decision in 2016. Although this case began based on causes of action for sexual orientation and perceived sexual orientation, the hearing officer noted that the evidence presented at public hearing did not show that the Complainant is gay or was perceived as such. The MCAD noted that “[s]uch a discrepancy is not fatal, however, because the crux of the charge is that Complainant was subjected to homophobic names and a sexual assault by Lt. Stamatis.” In doing so, the hearing officer concluded that the Complainant stated a claim for sexual harassment based on the homophobic slurs directed at him.

Decision Date: February 26, 2016

Overview: In Chase-Eason v. Crescent Yacht Club, the MCAD found in favor of the Complainants, awarding back pay to one of them and emotional distress damages to both. Complainant Eason was subjected to unwanted touching and vulgar comments that were sufficiently severe to alter the conditions of her employment and create a hostile work environment. Even though she did engage in bawdy banter, she “did not waiver in her efforts to protest the behavior directed against her.” The fact that some harassment occurred when Complainant Eason was off duty did not negate the employee/supervisor relationship.

The hearing officer similarly concluded that Complainant Chase was subjected to unwanted touching and hostile language sufficiently severe to constitute harassment. Both Complainants were entitled to emotional distress damages. Complainant Eason, who was terminated, was also entitled to back pay; Complainant Chase, who quit voluntarily, was not.