Individual Liability for Sexual Harassment

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					                                                                    Denise I. Murphy, Esq.1
                                                                    Roxanne M. Lucy, Esq.



                         Individual Liability for Sexual Harassment

        Sexual harassment is a form of sex discrimination that violates Title VII of the

Civil Rights Act of 1964 as well as various state civil rights statutes. The Equal

Employment Opportunity Commission defines sexual harassment as “unwelcome sexual

advances, requests for sexual favors, and other verbal or physical conduct of a sexual

nature” when “submission to or rejection of this conduct explicitly or implicitly affects an

individual’s employment, unreasonably interferes with an individual’s work performance

or creates an intimidating, hostile or offensive work environment.”2 Both criminal and

individual civil liability may result from conduct that constitutes sexual harassment.

        While the United States Supreme Court has yet to decide whether Title VII, the

federal statute protecting employees from sexual harassment in the workplace, imposes

individual liability, a majority of the federal courts have held that there is no such liability

under the federal statute.3 On the other hand, many state civil rights statutes make it

unlawful for both employers and individuals to aid, abet, incite, compel, or coerce the

conduct forbidden by these statutes.4 As a result of the use of the terms “aid” and “abet,”

many states require liability to be established on the part of a principal, usually the

employer, before extending individual liability to an individual or aids or abets the

principal.5

1 Ms. Murphy is Of Counsel at the Boston office of Nelson, Kinder, Mosseau & Saturley, P.C. Ms. Lucy is
an associate at the Manchester, New Hampshire office of Nelson, Kinder, Mosseau & Saturley, P.C.
2 Facts About Sexual Harassment, http://www.eeoc.gov/facts/fs-sex.html
3 83 A.L.R. 5th 1 (2000).
4 Id.
5 See e.g. Hicks v. IBM, 44 F.Supp.2d 593 (S.D.N.Y. 1999).
        Although the language used in these statutes is fairly uniform, the states vary in

their interpretations of these statutes. Some states, such as New Jersey, for example,

interpret their statutes as providing individual liability only for supervisors whereas other

states, such as Massachusetts, interpret their statutes to provide individual liability for

both supervisory and non-supervisory employees.6 The majority view in New York,

allowing for individual liability regardless of supervisory status, provides that a defendant

who “actually participates” in the conduct giving rise to the claim may be personally

liable.7 Some New York cases go even further to impose liability on independent

contractors, as long as they directly participated in the discriminatory acts. 8

        In some states, a mere failure to act to prevent or remedy a violation of the statute

is enough to impose individual liability.9 The failure to act gives rise to liability under the

New Jersey statute when it rises to the level of “substantial assistance or encouragement.”              10


Factors that the New Jersey courts analyze in determining whether a defendant provided

“substantial assistance” in another’s sexual harassment are: (1) the nature of the act

encouraged; (2) the amount of assistance given by the defendant; (3) the defendant’s

presence or absence at the time of harassment; (4) the defendant’s relation to the harasser;

(5) the defendant’s state of mind; and (6) the duration of assistance provided. 11 In states

where there is no clear authority on this issue, such as Massachusetts, the decisions




6 See e.g. Tyson v. CIGNA Corp., 918 F.Supp. 836 (D.N.J. 1996); Chapin v. University of Massachusetts
at Lowell, 977 F.Supp. 72 (D. Mass. 1997);
7 See Sowemimo v. D.A.O.R. Sec., Inc., 43 F.Supp.2d 477 (S.D.N.Y. 1999).
8 See Dunson v. Tri-Maintenance & Contractors, Inc., 171 F.Supp.2d 103 (E.D.N.Y. 2001).
9 See e.g. Morehouse v. Berkshire Gas Co., 989 F.Supp. 54 (D. Mass. 1997); Fiol v. Doellstedt, 50 Cal.

App. 4th 1318 (2d Dist. 1996).
10 See Failla v. City of Passaic, 146 F.3d 149 (3rd Cir. 1998).
11 See Newsome v. Administrative Office of Courts of State of New Jersey, 103 F.Supp.2d 807 (D.N.J.

2000).


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appear to indicate that a supervisory employee will be held individually liable for failing

to act, while a non-supervisory employee will not.

           Some states, such as Massachusetts, have a separate provision in their civil rights

statutes that provides for liability for direct harassment in addition to the “aiding and

abetting” theory. In Massachusetts, this provision makes it unlawful for “any person to

coerce, intimidate, threaten, or interfere with another person in the exercise of enjoyment

of any right granted or protected” under the civil rights statute.12 A recent decision from

the Massachusetts Commission Against Discrimination (the “MCAD”), the agency

charged with interpreting the Massachusetts Anti-Discrimination Statute, held that a

Harvard professor was individually liable for sexually harassing his teaching assistant.13

Although the decision mentioned that the professor could be liable under the aiding and

abetting provision, the decision was actually based on the professor’s coercive and

intimidating. The behavior MCAD found that the professor, through his actions and

comments, interfered with the employee’s right to be free from harassment in the

workplace a right protected by the statute. The decision specifically noted that, even if

the professor had not been the individual’s supervisor, he would still be liable under this

provision.

           State courts reach different conclusions as to whether there is individual liability

under state civil rights statutes. Some follow the majority judicial interpretation of the

federal statute, while others interpret state statutes as providing broader protection.

Among those states that provide for individual liability, there is further variation on what

amounts to conduct necessary for liability as well as determining the persons who may be


12   M.G.L. c.151B §4(4A).
13   See Marcheterre Fluet v. Harvard University and John T. Koch, MCAD Docket No. 97-BEM-0690.


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held liable. It is important to consult the state courts’ opinions interpreting the statute in

addition to the statute itself in determining the circumstances under which individual

liability is imposed.



                                       Criminal Liability

           Individual employees should anticipate that some conduct constituting sexual

harassment may lead to criminal convictions and potential registration on a sex offender

registry. In addition to facing civil charges, criminal charges may be filed against the

harasser for sexual offenses such as assault, rape, stalking, or any attempt to commit

these crimes. Convictions for any of these sex offenses may categorize harassers as a

sexual offender or even a sexual predator, depending on the state statute, requiring them

to register on a sex offender registry.14 State criminal statutes vary in regards to the types

of sex offenses categorized as crimes, as well as to the characterization of a sex offender

or sexually violent predator.

           The personal ramifications of criminal liability for a sex offense are significant.

Not only is information about a convicted sex offender available through local police

stations, in many areas this information is available through internet access or published

on dedicated television cable stations. Sex Offender Registry information contains the

sex offender’s name, residential address, employment address, physical description

and/or identifying photograph, and a description of the offense for which the offender

was convicted, all of which are available to anyone making an inquiry.15




14   See e.g. M.G.L. c.6, §178C.
15   See e.g. M.G.L. c.6, §178D.


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       The potential for individual ostrazation as a result of the dissemination of this

information is real. No longer would that individual be welcomed on the soccer field,

the hockey rink, or at the dance recital. Further, the family of a registered sex offender

suffers as well. They confront taunts and isolation as other families are reluctant to allow

their children to play together, isolating them from school and social activities.

       As a result of the potential civil and criminal liability which exists, the price paid

by individuals for engaging in sexual harassment in the workplace is substantial. Risk

management of this potential exposure should include education and training sessions for

employees to apprise them that they too, may suffer significant harm if they engage in

inappropriate workplace behavior. By educating employees about their own liability for

sexually inappropriate actions, employers gain an effective tool in the never ending task

of minimizing risk exposure.




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