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Bloom & Buell's

SJC WANTS THE MCAD TO BE REASONABLE

It isn’t often that our Supreme Judicial Court overrules the Massachusetts Commission Against Discrimination but earlier this month they did just that and the reason they gave was that they didn’t think the MCAD had been reasonable when it ruled that an employer should have done more than he had when he nipped sexual harassment in the bud.

While agreeing with the MCAD hearing commissioner that the employer could not wriggle out from his liability just because the sexual harassment was committed by an employee of a subcontractor, the SJC ruled that the hearing commissioner had not been reasonable when he ruled that the employer should have acted faster than he had. Nor was it reasonable to expect the employer to investigate more thoroughly, especially since the steps taken ended the sexual harassment.

The SJC reversed the MCAD ruling and with it the $50,000 award plus legal costs to the complainant.

The case involved a woman, an apprentice carpenter with the general contractor for the Big Dig, who complained that an ironworker of a subcontractor had peeked into the portable toilet she was using and that at the same time someone had tightened a wire around the portable toilet. She had to shout for fellow workers to come and cut the wire so she could get out. And later she saw some obscene graffiti on the wall of the toilet clearly alluding to the peeping incident.

Her employer, Modern Continental, and her union shop steward responded to her complaint immediately. The union filed a grievance on her behalf and took it to the second level of a multi-level grievance procedure. The woman was never able to identify the peeping tom, even after an executive of Modern Continental showed her a surveillance tape. The ironworker who had looped the wire around the port-a-pot was tracked down by her union and he apologized. It was never established whether he had also done the peeping.

Modern Continental tried to get the ironworker fired, but not only did the subcontractor refuse, but the man’s fellow workers threatened a job action if he were fired.

Besides trying to find the peeping tom, Modern Continental sent a letter with the next paycheck to all the workers reminding them of the prohibition against sexual harassment. In addition, their staff member charged with suppressing sexual harassment, held a number of consciousness raising sessions, so-called tool box talks, to drive home the company’s position. The company also set up separate toilets for the women on the job site, surrounded them with wire fencing, and padlocked them, giving keys to the women workers.

Said the SJC in a unanimous opinion written by Justice Martha B. Sosman, “… on this record, Modern [Continental] satisfied its obligation to its employee by making reasonable efforts to remedy the harassing conduct.”

And then the SJC added a sentence that should restore the faith of those who had long ago resigned themselves to the view that our legal establishment has left reason behind: “The MCAD’s decision to the contrary is not supported by substantial evidence, and instead reflects the imposition of an erroneous standard higher than reasonableness.

Case reviewed was: Modern Continential/Obayashi v. Massachusetts Com’n Against Discrimination, 445 Mass. 96, 2005 WL 2137844, Mass., Sep 07, 2005