A recent decision by a full panel of the Massachusetts Commission Against Discrimination (MCAD) emphasizes the need for supervisors to understand their duty to act to ensure that unlawful harassment allegations are addressed and that any such conduct ceases.

Since 1998, two cases decided by the U.S. Supreme Court, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, enable employers to avoid liability for employee claims of sexual harassment based on a hostile work environment brought under Title VII of the Civil Rights of 1964 if: (1) the employer took reasonable care to prevent and promptly correct the harassing or discriminatory behavior, and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided.  Employer policies, training for its supervisors and investigative processes are taken into consideration in determining whether there were sufficient preventive or corrective opportunities provided to employees.  If the conduct, however, results in a tangible employment action such as a demotion or termination, then the Faragher/Ellerth affirmative defense is unavailable to the employer.

Although many states have not adopted this defense, a few states have advanced the law at the state level, at least in theory, to permit employers to assert a Faragher/Ellerth-type affirmative defense.  Even Massachusetts, which statutorily imposes liability upon employers for acts of their supervisors and managers, and which has a reputation for being biased in favor of employees, has not ignored the elements of the Faragher/Ellerth affirmative defense in assessing liability and/or damages.  Instead, employers are encouraged to conduct education and training programs on sexual harassment and discrimination prevention.  Further, the MCAD Sexual Harassment in the Workplace Guidelines emphasizes that “an employer’s commitment to providing anti-harassment training to its workforce may be a factor in determining liability or the appropriate remedy.”  The footnote accompanying this statement further explains that “[i]n court cases where punitive damages may be sought, evidence of training may also mitigate damages.”

Certainly, the converse is true.  In MCAD & Thomas Sobocinski v. United Parcel Services, Inc., et al., a full panel of the MCAD affirmed the Hearing Officer’s decision requiring, among other things, that UPS conduct comprehensive discrimination and harassment training for all of its supervisors and managers in all of its facilities in Massachusetts, among other things.  This decision was in response to what the MCAD called a “woefully inadequate” investigation process, which included the behavior of the employer’s lead investigator – the employee relations manager for the company.  Despite a prior complaint of sexual harassment against the manager at issue, the investigator had failed to properly conduct an “effective and neutral” investigation; rather, he warned the alleged bad actor to “protect himself from employees with an ‘axe to grind.’”  In this case, the MCAD found that the investigator had a “surprising lack of understanding of what constitutes sexual harassment under Massachusetts law” and that the immediate supervisors failed to take any remedial action because they, too, misunderstood that if the employee did not believe that a manager intended to act on his sexually charged statements about sodomizing him, then the conduct was not sexual harassment.

Although this case is an extreme example of ignorance of the law, the effects of Faragher/Ellerth can still be felt by employers.  Where proper training is conducted, employers may decrease liability for even their supervisory employees’ harassing conduct, or, at the very least, escape a punitive damage award even if the employer is found to be vicariously liable for its supervisor’s acts.