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Discrimination

An employer is liable for a worker who sexually harasses another employee, even if the harasser is not motivated by sexual interest in the victim.

An employer can’t avoid liability for sexual harassment by arguing that that the harasser was “just” a jerk and was not sexually attracted to the victim.

In a recent federal court case out of Boston, the offending manager had not expressed any personal interest in the female employee.  However, there was ample evidence that the manager harassed the woman because she is female. In in one interaction with the female employee, the manager held a baseball bat he carried in the office.  The manager waved the bat in a swinging position and tapped it repeatedly, telling the employee things were going to improve now that he was around. The manager’s negative assessment of the female employe was all the more stark when set against positive evaluations and commendations the employee received for her work from others. The female employee retired in the face of this and other verbal abuse.

The Court ruled that a jury could reasonably infer that the manager’s attitude and condescending tone, when contrasted with how he dealt with male employees, showed that he disliked having a woman working for him. The Court ruled that the manager engaged in unequal treatment. They concluded that harassing conduct “need not be motivated by sexual desire to support an inference of sexual discrimination. The reported decision is from the U.S. First Circuit Court of Appeals, Burns v. Johnson.

In another case, when good natured banter crossed the line to homophobic slurs that were not playful but mean spirited, the employer was responsible for the creation of a hostile work environment, even though the harassers and the victim were both heterosexual. MCAD v. Reading Police Department.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464
617-969-2900

pam@pamsmithlaw.com

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