Corporate Liability Blog
New Statute Grants Right to Sue For Unlawful Harassment
- 06/09/10
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Governor Deval Patrick recently signed G.L. ch. 258E into law with little fanfare. This statute has created an avenue for victims of harassment and stalking to obtain harassment prevention orders. Possibly of even greater significance, it has also given victims of harassment an important new right to sue for damages.
Ch. 258E gives harassment victims a right to damages, including compensatory damages, medical expenses and reasonable attorney’s fees. Because the law is broadly worded, it may provide a new cause of action for many employees, tenants, consumers, debtors, crime victims and other individuals who have been victims of harassment. Boston employment lawyer Lauren Craig Redmond suggests that “258E amounts to a vast and untapped area of employer liability because of its broad definition of harassment.” Under 258E, “harassment” includes: “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property”
Although sexual and racial harassment has long been illegal, employers previously could avoid liability for egregious but non-discriminatory instances of harassment. Until now, general acts of harassment were not actionable unless they violated other established laws. With the enactment of ch. 258E, employers are now potentially liable for a broad range of activities that were not previously unlawful. Now, repeated verbal or physical conduct that threatens, intimidates, denigrates or shows hostility or aversion toward an individual will amount to unlawful harassment. For example, an employer who repeatedly and loudly berates an employee publicly or in front of other employees might be subject to liability for unlawful non-discriminatory harassment.
There are a host of unanswered questions concerning the scope and application of ch. 258E that will need to be decided by the courts. When can employers be held liable when their employees engage in harassment? Will employers be subject to strict liability for harassment by managers and supervisors? Will claims under ch. 258E be preempted by ch. 151B, Massachusetts anti-discrimination law? Do the the parties have a right to trial by jury in disputes arising under ch. 258E?
Ch. 258E also establishes a mechanism for individuals who are subject to harassment to go to court and obtained a protective order. These orders can restrain harassers from engaging in further acts of harassment and abuse and require harassers to keep a certain distance away from victims of harassment.