Types of Sexual Harassment in the Workplace
Two Types of Sexual Harassment in the Workplace When considering the possibility of pursuing a sexual harassment claim against an employer, it is important to determine what type of claim you may have. Sexual harassment claims can take the form of quid pro quo or hostile work environment harassment. Below we describe and provide examples of these two types of sexual harassment claims. 1. Quid Pro Quo Sexual Harassment This occurs when a manager or another person who has authority over the terms and conditions of another employee’s work offers some sort of benefit in exchange for the employee’s submission to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Quid pro quo sexual harassment also occurs when a manager or another person who has authority over the terms and conditions of another employee’s work denies that employee some sort of benefit because the employee refused to respond to, or rejected, the sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Example: An employee received a raise after submitting to their supervisor’s request to dress in tight skirts while at work. Example: An employee’s shifts were reduced after refusing to submit to their manager’s request for a sexual favor. 2. Hostile Work Environment Sexual Harassment This occurs when a manager or another person who has authority over the terms and conditions of another employee’s work makes sexual advances, requests for sexual favors, or requests for other verbal or physical conduct of a sexual nature for the purpose of unreasonably interfering with the employee’s work performance by creating an intimidating, hostile, or sexually offensive work environment. Example: A supervisor continuously calls an employee a sexually-charged nickname in front of her coworkers, sends her daily emails complimenting her on her appearance, and strokes her arm whenever he is in close proximity to the employee, creating an intimidating, hostile, and sexually offensive work environment. If you have been subjected to sexual harassment or have questions about your right to be free from sexual harassment at work, please contact an employment lawyer at Sankey Law Offices today. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreSexual Harassment in the Workplace
In Massachusetts, sexual harassment is recognized as a form of discrimination based on sex and is strictly prohibited in the workplace. Sexual harassment can take many forms and occur at varying levels of intensity. Instances of sexual harassment may range from an isolated incidents involving a single comment or joke, all the way to the pervasive occurrence of inappropriate physical contact, comments, and gestures. Contrary to popular belief, an employee need not be subject to an adverse employment action, such as a demotion or termination, to have a legally cognizable claim for sexual harassment. It is enough if the sexually harassing conduct interferes with the victim’s ability to do her job. Claims of sexual harassment may also arise when a supervisor’s or co-worker’s actions create a hostile work environment. It is important to note that sexual harassment claims are usually fact specific and often depend on the work environment and type of conduct involved. A remark or gesture that might be appropriate in one situation may be unlawful in another. For example, a gymnastics coach who guides a gymnast by the hips to assist her in jumping up to the uneven bars would likely not be engaging in sexual harassment, while a supervisor in an office building who grabbed an employee’s hips while she was using the copy machine would certainly be engaging in unlawful conduct. Similarly, a fashion designer who compliments a model on her outfit would probably not be engaging in sexual harassment, but a doctor who frequently comments on the physical appearance of his receptionist might be engaging in conduct that constitutes sexual harassment. As these examples illustrate, the context of the situation and the type of conduct involved often determines whether sexual harassment has occurred in the workplace. Our attorneys have extensive experience advocating on behalf of individuals who have faced sexual harassment in the workplace. If you are concerned that you are experiencing sexual harassment at work, or would like more information about the laws governing sexual harassment, please contact an experienced sexual harassment attorney at Sankey Law Offices today. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreWhen an Employee Cannot Be Fired: Exceptions to the At-Will Employment Rule
As we discussed in a previous blog post, most jobs in Massachusetts are categorized as at-will employment. This general rule means that employers or employees may terminate their relationship for any cause, or no cause at all, however there are several exceptions to the general rule. Below are some exceptions to the at-will employment rule: 1. Federal or State Statute A federal or state statute may prevent an employer from terminating the employment relationship in specific circumstances. For example, under both federal and Massachusetts law, employers may not terminate an employee that is a member of a protected category for a discriminatory reason (e.g. race, religion, gender, sexual orientation, age, etc.). This means that an employee cannot be fired because of her race, religion, or gender, to name a few protected categories. However, just because an individual is a member of a protected category does not make any termination legally actionable. The employee must have been fired specifically for a discriminatory reason. Massachusetts’s law also forbids employers from terminating an employee out of retaliation after that employee made a complaint to an outside agency regarding discrimination or illegal conduct in some situations. 2. Implied Covenant of Good Faith & Fair Dealing Every contract in Massachusetts includes an implied covenant of good faith and fair dealing. This essentially means that no party to a contract should intentionally act in a manner that would harm another party’s ability reap the benefits of the contract. A common example of a breach of this covenant occurs when an employer terminates an employee just before the employee was set to receive a bonus, to avoid payment of the bonus. 3. Public Policy In order to establish an exception to at-will employment based on this exception, there must have been a violation of a clearly established public policy. The three recognized categories of clearly established public policies include: a. Termination for asserting a legally guaranteed right (e.g. voting). b. Termination for doing what the law requires of them (e.g. jury duty, reporting suspected child abuse in positions that require mandatory reporting). c. Termination for refusing to do what the law forbids them to do (e.g. helping the employer commit fraud). In addition to these three well-established exceptions, there have been circumstances where a court has found that termination for voluntarily assisting with a government investigation also falls under the public policy exception. While it may seem clear that an exception to the general at-will employment rule is present in some cases (especially where there is a violation of a federal or state statute), a fact-specific inquiry is often needed to determine whether or not an employee’s specific circumstances falls within an established exception. If you have questions about employment law or the end of your employment relationship, please contact a lawyer in our office today at (781) 930-3127. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreAt-Will Employment Law in Massachusetts
In our practice, we often speak with individuals who have been terminated from employment and are seeking legal recourse. Unfortunately for many individuals who find themselves in this situation, most jobs in Massachusetts are categorized as at-will employment. This means that either the employer or the employee may end the employment relationship at any time, for any reason, or for no reason at all. Generally, neither party is required to give any form of notice or warning before terminating the employment relationship. Here is some information on at-will employment law in Massachusetts. Is Your Job At-Will? For the most part, in Massachusetts a job is considered at-will unless it is otherwise noted in a contract or other agreement. An Employment Agreement or letter offering the position will usually contain language specifically stating if the position is at-will or not. At-will employment is contrasted with a position that is offered for a specified period of time, such as a contract covering a one year period, and this type of position is not “at-will” but rather contractual. In addition to explicit information contained in a written contract, an employer may form an implied contract with employees through an employee handbook or other internal guidelines that provide information about any terms that modify the default at-will status of employment. It is important to note that even if a handbook includes such information, many employee handbooks do contain a disclaimer stating that the employer retains the right to modify employment policies at any time. If an employer does not give any information about whether a position is at-will or not through a formal contract, employment agreement, employee handbook, internal guideline, or oral conversation, it is generally safe to assume that the position is at-will. There are, however, some exceptions to the default at-will employment rule, which we will discuss in our next article. What this Means for Most Employees? In Massachusetts, non-union employees without a contract, are employees at-will and can be terminated at any time, for any reason or no reason. In general, unless there is an employee handbook or other guideline to the contrary, this can also be done without notice. Of course, an employee cannot be terminated for a discriminatory reason or in retaliation for engaging in certain protected activities as this would violate state and federal anti-discrimination laws. Our next article will discuss these prohibitions in greater detail. Please contact an experienced employment attorney if you have specific questions about your employment status or employment discrimination. If you have questions about non-compete agreements or other employment related issues, please give us a call at (781) 930-3127. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreBackground Checks on Applicants – Massachusetts Law Offers Certain Protections
Employment Background Checks – Massachusetts Law Background checks are often used by employers as part of the pre-employment screening process. Employers may be able to access certain information about applicants through the use of criminal background checks and credit checks, but the amount of information they will be able to access will depend on whether the particular employer is a public or private organization, the type of industry, and the nature of the position. In this article we will discuss the use of criminal records in the interview and pre-employment screening process; our next article will discuss the use of credit checks. Have Questions? Call Sankey Law Offices Today At (781)930-3127 Prospective employees with criminal records may face some challenges in the employment process. However, Massachusetts provides applicants with criminal records fairly strong protections when it comes to obtaining and using criminal record information in the employment process. It is important to note that, although many employers rely heavily on background checks, such as criminal records and credit checks, they may also access additional information about applicants through publicly available sources of information. Criminal Record Checks One of the primary ways prospective employers investigate applicants is through criminal record checks. Many employers in Massachusetts obtain copies of applicants’ criminal records through a state system called CORI. Some employers may also have access to more in-depth criminal record information through the federal government, which allows for nationwide searches into an applicant’s criminal history. Have Questions? Call Sankey Law Offices Today At (781)930-3127 In 2012, the Massachusetts legislature enacted a law that prohibits employers from asking about criminal record information on their initial written applications. However, employers may ask applicants to disclose information about certain types of convictions during an interview. If an employer wishes to ask an applicant about his or her criminal history in an interview, certain rules apply. Felonies: An employer may ask if an applicant has ever been convicted of a felony. Misdemeanors: An employer may only ask an applicant to disclose information about misdemeanors that occurred within the last 5 years. An Employer may not ask an applicant to disclose information about misdemeanors where the date of conviction or completion of incarceration was five or more years prior to the date of application. An employer may not ask an applicant to disclose first-time convictions for: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing of the peace. Employers may not ask about arrests that did not lead to conviction. Most employers cannot ask about sealed criminal records (although some industries, such as daycare centers, do have access to all records, sealed or otherwise.) Have Questions? Call Sankey Law Offices Today At (781)930-3127 What is CORI? CORI stands for Criminal Offender Record Information. CORI provides information about an applicant’s criminal history within the state of Massachusetts. It may also have additional information if outside sources provided the state with their records, but it is not a national criminal record system and typically does not provide information about crimes that occurred in
Read MorePre-Employment Testing: What Employers Can and Cannot Require
Pre-Employment Testing Under Massachusetts Law During the hiring process, job applicants may be asked to undergo various forms of testing in order to obtain employment. As a job applicant, you might expect a prospective employer to investigate your criminal background or check your references, but there are many other types of pre-employment screening that are sometimes used. These tests may include medical examinations, drug tests, and lie detector tests. Some of these examinations may be acceptable regardless of the nature of the position, while others may only be used by an employer when the essential duties associated with a position requires additional testing or when such testing is required by federal or state law. Below we will describe several different types of pre-employment screening, and when they are permissible in Massachusetts. Do You Have Pre-Employment Testing Legal Questions? Call Sankey Law Offices Today At (781)930-3127 Medical Examinations Medical exams, prior to the employer making an offer of employment, are not permitted unless they simply involve demonstrating how, with or without reasonable accommodation, the applicant intends to perform the essential duties related to the position. Employers may make an offer of employment contingent upon the applicant’s ability to successfully pass a medical examination. This practice is permitted as long as the exam is required of all employees entering the same position, regardless of any perception of disability. Potential employees may not be excluded from the opportunity to gain employment unless they are unable to pass any portion of a medical exam that directly relates to the applicant’s ability to perform a necessary job function and the problem cannot be remedied with reasonable accommodations. Drug Tests Federal law generally takes a neutral stance on an employer’s ability to administer drug tests as a condition of employment in most industries – although industries such as transportation, aviation, and defense may require drug tests in light of safety concerns. Under Massachusetts law the use of drug tests as a hiring mechanism is neither encouraged nor prohibited. If an employer in Massachusetts chooses to administer a drug test it should occur after an offer of employment has already been made – drug tests should not be administered at any earlier stage in the hiring process. Additional Considerations: If an employer chooses to administer drug tests it must be done so uniformly to all applicants; an employer may not single out specific applicants or groups of applicants based on a suspicion that a particular applicant might be a drug user. An employer that singles out specific applicants or groups of applicants may risk a discrimination claim. Employers who choose to administer drug tests must do so in a manner that does not amount to a significant, unreasonable, or serious invasion of privacy. For example, a drug test should not be administered under circumstances that would require multiple test takers to disrobe in the same room. Determining appropriate level of privacy often requires a consideration of the competing interests of the applicant’s need for privacy and the
Read MoreUsing a Fake ID in Massachusetts – Not a Big Deal? Think Again!
Using a Fake ID is Illegal in Massachusetts Summer is upon us. It’s a great time of year to go to clubs and concerts. It’s tough being 19 or 20 years old though, when you’re left behind by your 21 year old friends as they head out to experience the Boston nightlife. The easy solution – a fake ID. The chances of getting caught seem slim, and they are easy and not too expensive to obtain. Using a fake ID is easy to justify because “everyone else has one” and even if your parents know, they don’t seem to get overly upset. It will also be useful to take back to college in September. Our advice: think again! There are serious criminal consequences in Massachusetts for offenses involving false identification cards, and police are very aggressive in detecting and prosecuting these offenses. It is against the law in Massachusetts to falsely make or alter a driver’s license or other forms of identification. This offense is a felony, with possible punishment of 5 years in prison. A felony conviction has serious permanent ramifications and can affect eligibility for financial aid as well as the right to vote or to possess a firearm. It is also a criminal offense to use or carry a false identification card. The simple act of using or carrying a fake ID can result in a misdemeanor conviction punishable by imprisonment of not more than three months and a fine of not more than $200. Now, let’s consider reality. Is it likely that a teenager will actually go to jail for using a false identification card? Of course not. However, he may be summoned to appear in court with the result that the charge will appear on his criminal record, with negative implications for future employment. The main consequence that should get the attention of any teenager is the impact on his driver’s license if caught using a fake ID. Even if a car was not involved in the offense, most police departments will report any arrests for false identification offenses to the Registry of Motor Vehicles. The Registry is required to suspend the driver’s license of any person convicted of making or altering a driver’s license for one year. If the charge is for using or carrying a false identification card, the Registry may suspend the driver’s license for 180 days, even if there is not a conviction. Offenses involving false identification cards are serious. Ask any teenager who has been through the process what it was like to be without a license for six months. Getting into a club for one night seems hardly worth the risk of serious criminal consequences and the inconvenience of being without transportation. If you have the unfortunate experience of being charged with a false identification offense, call a lawyer. There are things that can be done to avoid many of these consequences, but it is critical to intervene at the earliest possible stage. Written by Jeffrey Sankey For more
Read MoreEmployers Must Accommodate Employees Unless it Presents an Undue Hardship
In our last article, we discussed the protections afforded to disabled individuals in the hiring process. As we mentioned, qualified individuals with disabilities are entitled to “reasonable accommodations” to allow them to perform the essential functions of their job. However, an employer is not required to provide an accommodation if it will cause an undue hardship for the employer. In general, employers must accommodate employees unless it presents an undue hardship. But what is an undue hardship? An undue hardship occurs when providing the requested accommodation will substantially interfere with the employer’s ability to carry out business. There are a variety of reasons why an employer may not be able to grant a request for an accommodation. Some of these reasons include: instances when granting such a request renders the employer unable to comply with federal or state laws, where health or safety would be compromised, when the job function cannot be performed by another employee, or where the expense is too great. Massachusetts law outlines several specific considerations for determining an undue hardship: 1. The overall size of the employer’s business with respect to the number of employees, the number and type of facilities, and the size of budget or available assets. 2. The type of the employer’s operation, including the composition and structure of the employee’s workforce. 3. The nature and cost of the accommodation needed. As the factors listed above indicate, there are several different items that must be weighed when determining whether an accommodation would pose an undue hardship. Notably, what may constitute an undue hardship to one employer may not be an undue hardship to another employer, so these determinations must be made on a case-by-case basis. In cases where providing an accommodation creates an undue hardship for an employer, the employer must consider alternative accommodations that would not impose an undue hardship. To this end, employers and employees must work together through an interactive process to determine what constitutes a reasonable accommodation and how to best implement such accommodation. If, after considering alternatives, an employer determines that it cannot reasonably accommodate an employee, the employer or employee may wish to consult legal counsel to ensure there are sound business reasons for denying the accommodation request. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreDisabled Persons Are Entitled To Protections In The Hiring Process
Searching for employment is a difficult process, and having a disability can sometimes make a job search even harder. In order to comply with the law and to provide disabled persons with the protections that they deserve, an employer must understand who is protected under federal and state discrimination laws, what it means to be qualified for a position, and what types of accommodations an employer may be legally required to provide. The federal government defines a person with a disability as: Any person who has a physical or mental impairment that substantially limits one or more major life activities, or who has a record of such impairment (a history of one or more major life activities being limited or an episodic but not currently manifesting impairment), or who is regarded as having such an impairment (a presumption that a person has an impairment, which may or may not be a mistaken belief). This means that, even if a prospective employee is not disabled, he or she is entitled to protection if the employer believes that he or she has a disability. This distinction often occurs in the context of a disease which does not impact the employee’s ability to work, but the employer nonetheless refuses to hire or treats an existing employee as disabled because of the employer’s misperception about the disease. Under these circumstances, the employee is entitled to protections under federal and state law. An impairment is considered to be disabling if it “limits a major life activity.” So, what is a major life activity? Both the federal government and Massachusetts identify several activities that fall within the definition, but neither present an exhaustive list. The Americans with Disabilities Act (ADA) recognizes that “major life activities” can be both physical activities and major bodily functions. These activities may include, but are not limited to: Caring for Oneself Performing Manual Tasks Walking Seeing Hearing Speaking Breathing Learning Working Functions of Bodily Systems or Neurological Functions Under federal and state law, an employer cannot refuse to hire a qualified person who falls within this definition of disability, so long as the person is capable of performing the essential functions of the job with or without “reasonable accommodations” We will discuss these terms in upcoming blog articles. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreInterviews – What Can You Ask And What Shouldn’t You Ask?
What Can You Ask And What Shouldn’t You Ask in Interviews? Obviously, an employer’s intent during an interview is to determine whether a candidate is a good fit for the job. However, the interview process has many pitfalls for an interviewer who is unaware of laws which prohibit questions in certain areas. In Massachusetts, it is unlawful for a private employer with six or more employees, or a public employer with any number of employees, to refuse to hire an applicant because they are a member, or are presumed to be a member, of a protected class. Interview questions that are used in an attempt to gain information about an applicant’s membership in a protected class may be considered unlawful if they are not necessary to satisfy federal or state law, or are not necessary for the specific job qualifications. Sample Questions: Here are some examples of appropriate questions, followed by examples of inappropriate questions accompanied with an explanation. 1. Are you over 18 years of age? NOT: How old are you? Are you old enough to retire soon? Questions regarding age may only be asked to assess if an applicant is of legal age to perform the essential duties of the position when the position requires that an applicant be a certain age. They may not be used for the purposes of discriminating against an applicant due to advanced age. 2. Are you legally authorized to work in the United States? NOT: What is your ancestry or national origin? Where were you born? An employer may inquire into the applicant’s work authorization, but may not ask questions about where a person is from in order to make assumptions about if that individual immigrated from another country, are a native English speaker, etc. 3. Are you able to perform the essential duties associated with the position? NOT: Do you have a disability/handicap? An employer may ask if an applicant can perform all of the duties essential to the position, but the employer may not ask if an applicant has a disability and then make assumptions about the applicant’s ability to perform work-related tasks. As long as an applicant is a “qualified” person with a handicap they should have an equal opportunity for being hired just like any other applicant. 4. Are you a U.S. Veteran? NOT: Are you disabled due to military service? An employer may ask applicants if they served in the U.S. Military but may not ask questions in a manner that would require an applicant to provide additional information associating themselves with a protected category. For information on some additional categories of interview questions that are (and are not) permissible, please refer to this blog article. Please contact us if you have specific questions about employment law and the hiring process. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read More