The already complex landscape of discrimination law facing Massachusetts employers has become even more confusing now that a court has ruled that employees may sue co-workers for sexual harassment and retaliation.
In a case decided earlier this summer, a federal trial court held that a non-exempt co-worker may be sued individually under Massachusetts Chapter 151B for sexual harassment and retaliation. (Martin v. Irwin Industrial Tool Company, et al.) (Neiman, U.S.M.J.). Massachusetts courts have long recognized that supervisors may be held individually liable by virtue of their position in management and the accompanying authority that comes with such a position, but Martin expands that standard to include co-workers.
Because the Martin case arose out of the federal trial court, it is not binding on any Massachusetts court. No Massachusetts court has to date tackled the issue of whether a rank-and-file worker may be sued individually for employment discrimination under our state statute. It is likely that if and when a Massachusetts appellate court tackles this issue, it may reach a different conclusion that the federal court.
But until a Massachusetts court resolves this issue, the Martin decision will readily be used by any plaintiff’s attorney as grounds for having the ability to sue a rank-and-file worker.
As a result of this case, you may face a non-management, rank-and-file worker as your co-defendant in a lawsuit. Apart from the lawsuit, you will have to make a decision about this employee. This worker likely does not have the means and/or resources necessary to obtain separate counsel. Your options then become:
- paying for an attorney for this worker yourself;
- having your employment law attorney represent both of you, provided there is no conflict, or
- having the worker pay for his own attorney.
All three options create potential issues. Hiring a separate attorney for the worker is obviously costly and, with separate counsel on board, you lose a certain amount of control over the way the case progresses and the direction it takes.
If a rank-and-file worker represents himself, you similarly lose control over the progression of the case; the litigation may not be as efficient; the worker may become uncooperative; and/or the worker may default.
While there are benefits to a joint representation arrangement, such as presenting a unified front, cooperation from the worker, and retaining more control over the direction of the case, issues and/or conflicts could arise down the road, such as with strategy or settlement. These types of issues will need to be explored carefully with your labor and employment law counsel as you face litigation.
How can employers reduce their risk?
The actions of any employee, management or non-exempt, may lead to a harassment or discrimination complaint being filed against the company. Under Massachusetts state law, all employers of six or more employees must have a sexual harassment policy in place that is distributed to all workers. To minimize the risk of a complaint being filed employers should:
- Make sure the policy is issued to all new hires and annually to all employees;
- Host anti-harassment and discrimination training for all employees to ensure they understand their rights under the policy
- Clarify that non-exempt employees that they are just as important to help stop harassment and discrimination
- Train your supervisors on how to speak with their non-exempt employees about identifying and responding to harassment or discrimination
Amy B. Royal, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor- and employment-law firm.
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