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The Massachusetts Commission Against Discrimination (MCAD) Announces a Proposed Draft for Harassment in The Workplace: It is Optional

03 Apr

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Update Applicable to:Effective date
All employers in MassachusettsMarch 25, 2024


What happened?

On January 25, 2024, the Massachusetts Commission Against Discrimination (MCAD) published a draft guidance entitled “Guidelines on Harassment in the Workplace.” The agency has given the public until March 25, 2024, to provide comments on the Guidelines.


What are the details?

The proposed guidelines (The Guidelines), although not binding, are used as a model to create harassment guides, and some new and noteworthy incorporations, such as:  

  • MCAD emphasizes that employers can be liable for harm to the “public interest.”
  • Anti-discrimination laws may be violated “even where an employee voluntarily agrees to an illegal quid pro quo and might be shown to have enjoyed sought-after benefits as a result, with little evidence of emotional or other harm.” 


Key Bites:

  • MCAD abandons the long-used “severe or pervasive” standard.
  • MCAD issues new training and policy guidance: includes the following recommendations.


Massachusetts law only requires employers to have a policy on sexual harassment, but the MCAD has long taken the position that employers should do more to ensure that employers do not engage in illegal discrimination or harassment of any kind and to educate employees about their rights.

The recommendations, especially the ones regarding training and retraining, are optional.


Business Considerations

  • The Guidelines, when finalized, will not be binding on either employers or the courts, but such guidance is frequently relied upon by judges as to how the law should be interpreted and applied. 
  • Review and update the relevant policies beforehand if necessary to your operations.
  • Employers are encouraged to leave their input to the agency. You can do so here: Link.
  • Due to the application of the “apparent authority doctrine” in harassment cases, it is recommended to seek counsel from a competent attorney on how you can mitigate risk.


Resources


Source References

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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