Discrimination/Harassment Laws

In Massachusetts, all employees are protected from sexual harassment, and it is illegal to discriminate in any aspect of employment based upon age, disability, race, color, national origin, ancestry, religion, sex, pregnancy, gender identity/expression, sexual orientation, genetic information, or military service.

Below is an introduction to workplace discrimination and harassment laws in Massachusetts. Note that the rules and regulations regarding discrimination and harassment vary from state to state, and that this guide is designed to help farmers ensure that they are adhering to applicable laws, but it is not a legal document and is not exhaustive.

For more information on state and federal laws related to discrimination and harassment, see the websites of the  Massachusetts Commission Against Discrimination and the federal Equal Employment Opportunity Commission.

Sexual Harassment

All employees of all genders are protected from sexual harassment. Sexual harassment is defined as: sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when:

• Submission to or rejection of such conduct is made explicitly or implicitly a term or condition of employment or as a basis for employment decisions, or
• Such conduct has the purpose or effect of unreasonably interfering with a person’s work performance by creating a hostile work environment.

Discrimination

It is illegal to discriminate in any aspects of employment (hiring and firing, promotion, compensation, benefits, training, classification, etc.) based on any of the following characteristics:

• Age (only over 40 in MA, but all ages in CT or NH)
• Disability (physical or mental)
• Race
• Color
• National origin
• Ancestry
• Religion
• Sex
• Pregnancy
• Gender identity/expression
• Sexual orientation
• Genetic information
• Military service (current or past)

Employees are protected from harassment and discrimination by anyone who enters the workplace, not just by their supervisors or co-workers. In addition, employees are protected from discrimination based on the factors above whether they are in the minority or in the majority with regard to a given protected characteristic. It is illegal to discriminate against anyone based on their membership in a protected group, the perception that they are a member of a protected group, or their association with members of a protected group.

Who is liable for harassment or discrimination?

The employer may be liable for workplace harassment or discrimination if…

• they know or should have known of discrimination/harassment, and they fail to take prompt and effective remedial action
• a supervisor knew about the discrimination/harassment (even if the supervisor didn’t report it to the the owner/manager)
• a supervisor is involved in the discrimination/harassment (even if the employee does not complain and/or if prompt and effective remedial action is taken)

Individual supervisors or managers may also be liable for…

• their own discriminatory behavior in the workplace
• failing to act when they knew or should have known about discrimination

Accommodations

In the case of employees who may require workplace accommodations for disabilities, religious practices, or pregnancy, employers are required to provide “reasonable accommodations” so that:

• employees with a disability who are otherwise qualified for a job can perform essential job functions and enjoy equal terms, conditions, and benefits of employment
• employees whose religious beliefs or practices conflict with work requirements are accommodated
• employees who are pregnant, lactating, or recovering from pregnancy can participate fully in the workplace and have needs met, including having access to a clean, private, non-bathroom space with electricity to express breast milk

Once the employer is on notice of the need for an accommodation, they must engage in a two-way dialogue with the employee to identify possible reasonable accommodations.The employer may not have to provide an accommodation if they can prove the accommodation would 1) pose undue hardship or would 2) pose a danger to others.

Common examples of reasonable accommodations include things like: changing job duties, modifying or obtaining equipment, offering seating, modifying work schedule, transferring to a vacant position, allowing employee to work in a different location, breaks, or giving time off.

Reasonable accommodation generally does NOT require things like: giving paid time off, excusing a worker from essential job functions, providing an unlimited leave of absence, creating a new position, or hiring two people to do one job.

Retaliation

Employees cannot be retaliated against based on conduct that is protected by discrimination and harassment laws, including:

• complaining about discriminatory treatment
• complaining about sexual harassment, or
• asking for an accommodation related to disability, religion, or pregnancy

It’s important to note that it is also illegal to retaliate against employees for other legally protected conduct, including:

• filing a workers’ comp claim
• completing jury duty
• testifying in a court proceeding
• enforcing safety laws on the job
• inquiring about whether they have been paid proper wages, or
• refusing to violate a law

Training Requirements

Most employers in MA are required to post information on employees’ rights and responsibilities related to discrimination – visit this link to get the required poster on the Fair Employment Law in addition to other information on posting requirements for Massachusetts employers. MA state law additionally requires employers with six or more employees to:

• issue a written sexual harassment policy and distribute it to employees upon hire, and thereafter, annually
• provide written notice of pregnancy-related rights to all employees upon hire, and within ten days of learning of an employee’s pregnancy

State law also encourages employers to:

• have a written discrimination policy
• conduct a discrimination/harassment training for all employees within one year of hire

Best Practices

Some recommended practices to reduce liability related to discrimination and harassment and to improve workplace culture are as follows:

• Make employment decisions that are consistent, fair, and based on business needs.
• Offer training for employees on recognizing harassment and discrimination.
• Treat employees with respect by showing you value their knowledge and input.
• Actively encourage employees to voice their suggestions, concerns, and questions.

This webpage was last updated January 2019 and is based upon work supported by the U.S. Department of Agriculture’s (USDA) National Institute of Food and Agriculture under award 2018-70027-28588 and 2016-70017-25423 and by the USDA Agricultural Marketing Service through grant 16FMPPMA0002. Its contents are solely the responsibility of the authors and do not necessarily represent the official views of the USDA.