Workplace Harassment in a Small Business
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The most common law used to protect against sexual harassment in the workplace is the state anti-discrimination law (Chapter 151B). However, this law applies only to business with more than six employees.
But small business are not immune from sexual harassment. In fact, it is extremely common in smaller workplaces, where rules and procedures may be more casual. If you do a google search to find out your rights under Massachusetts law, you may only see references to Chapter 151B and become discouraged. Or, if you are a small business owner, you may see this and believe you do not have any legal risk if there is harassment in your workplace. What many people do not know is that there is a separate set of statutes in Massachusetts that prohibit sexual harassment and retaliation for reporting harassment that do not have any minimum number of employees to apply. Massachusetts courts have made clear that this law, Chapter 214, is broader and “ensures that all employees are protected against sexual harassment in the workplace, whether or not their employers fit within the definition of the term employer in c. 151B." Chapin v. Univ. of Massachusetts at Lowell 977 F. Supp. 72, 82-83 (D. Mass. 1997). This means that if you are subject to sexual harassment (unwelcome advances, requests for intimacy or sexual activities by a supervisor, inappropriate comments, for example), you have rights no matter how big or small your workplace is. And if you are a small business owner, you need to be careful that these things are not happening in your business, no matter how small your business is. |
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How to Report Harassment in a Small Business
In a larger company, you would have a Human Resources department or other designated person that you could bring a report of harassment to. In the small work environment, it can be less clear. This is particularly true if it is the owner/boss who is the harasser.
If the harasser is someone other than the owner, it is important to make sure the owner is aware of what is happening. They are not allowed to retaliate against you for making the report. They also cannot be held responsible for not addressing the situation if they don't know about it.
You do not need to use any magic words or special form. It could be as simple as an email or a note to the owner identifying the behavior and that it is making you uncomfortable. The owner should then investigate the situation. This may mean talking to you to find out more details. It should not mean that you have to discuss the problem with the person who is doing the harassing.
if it is the owner who is the problem, you should make sure you have clearly communicated that the behavior is unwelcome, but you can move directly to a legal claim without making a formal report.
If the harasser is someone other than the owner, it is important to make sure the owner is aware of what is happening. They are not allowed to retaliate against you for making the report. They also cannot be held responsible for not addressing the situation if they don't know about it.
You do not need to use any magic words or special form. It could be as simple as an email or a note to the owner identifying the behavior and that it is making you uncomfortable. The owner should then investigate the situation. This may mean talking to you to find out more details. It should not mean that you have to discuss the problem with the person who is doing the harassing.
if it is the owner who is the problem, you should make sure you have clearly communicated that the behavior is unwelcome, but you can move directly to a legal claim without making a formal report.
Can You Quit the Job and Still Bring a Harassment Claim?
You are not required to continue working in an intolerable environment. If you voluntarily resign, that could affect your ability to recover for lost wages, but you can still recover for the emotional distress caused by the behavior.
Also, if the situation is so bad that a "reasonable person" would not continue working there, you may still have a claim for lost wages, on a theory that you were constructively discharged. It is worth consulting with an employment lawyer before taking this step- the standard for proving constructive discharge is highly fact specific, and you might want to know beforehand what your chances are of establishing it.
Also, if the situation is so bad that a "reasonable person" would not continue working there, you may still have a claim for lost wages, on a theory that you were constructively discharged. It is worth consulting with an employment lawyer before taking this step- the standard for proving constructive discharge is highly fact specific, and you might want to know beforehand what your chances are of establishing it.
How to Bring a Harassment Claim Against a Small Employer
Though the law that covers smaller employers is different, the steps are the same as if you were bringing a claim against a larger company. You have to first file a complaint with the Massachusetts Commission Against Discrimination ("MCAD") or the federal Equal Employment Opportunity Commission ("EEOC"). Your initial complaint must be filed within 300 days of the events, which is approximately ten months. After you make this filing, you will have the option to remove the case from the agency and file in state or federal court.
300 days can go by quickly, and if you miss this deadline, you might be barred from seeking any remedy. You should not wait to consult with an employment attorney to understand your rights.
300 days can go by quickly, and if you miss this deadline, you might be barred from seeking any remedy. You should not wait to consult with an employment attorney to understand your rights.
How Our Employment Lawyers Can Help
If you feel that you are the target of sexual behavior, misconduct or harassment, we can help. We will help you assess the situation, understand your rights and obligations, and make a plan to solve the problem. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
