72 Mass. App. Ct. 549 | Mass. App. Ct. | 2008
Lead Opinion
Thomas O’Connor Constructors, Inc. (O’Connor), appeals from a judgment of the Superior Court affirming a decision and order of the Massachusetts Commission Against Discrimination (MCAD) on a claim brought by Jarvis Aldridge, an African-American employee of Rustic Fire Protection (Rustic). The MCAD ordered O’Connor to pay Aldridge $50,000 in emotional distress damages on account of offensive racial remarks made to or about Aldridge on four different occasions by Paul Daley, O’Connor’s job site superintendent. The MCAD also ordered O’Connor to pay a $10,000 civil penalty and to conduct annual training sessions for a period of five years.
On appeal, O’Connor asserts that (1) imposition of liability on O’Connor under G. L. c. 151B, § 4(4A), for the racially offensive remarks of Daley, is error where no employment relationship existed between O’Connor and Aldridge and O’Connor neither knew nor had reason to know of Daley’s remarks; (2) Daley’s remarks were insufficiently severe and pervasive to create a racially hostile work environment; and (3) the evidence was insufficient to support an award of emotional distress damages. We affirm, albeit on grounds different from those relied on by the MCAD. We conclude that O’Connor is directly liable for tolerating the hostile work environment created by Daley where it had notice of Aldridge’s claim but failed to remedy or take sufficient corrective action and, instead, returned Daley to supervise the work site.
1. Background. On December 7, 1998, Aldridge filed a complaint with the MCAD against O’Connor claiming that he was an employee of O’Connor and that Daley, a supervisor, had engaged in unlawful discrimination on the basis of race and color in violation of G. L. c. 15IB, § 4(1). The alleged unlawful discrimination consisted of Daley’s use of racial epithets when talking with or about Aldridge.
A hearing officer concluded that Daley made the racially offensive remarks alleged; that Aldridge was not the employee of O’Connor, but of Rustic; and that notwithstanding the absence of an employment relationship with Aldridge or liability under § 4(1), O’Connor was liable under G. L. c. 151B, § 4(4A), on
2. Facts. We summarize the facts found by the hearing officer. O’Connor was the general contractor on a project for renovation of two buildings at the University of Massachusetts at Lowell (UMass-Lowell). Rustic was a subcontractor at the project, responsible for installation of a new sprinkler and fire protection system. Besides Rustic, two other subcontractors worked on the project.
Daley, who was the job site superintendent, served as O’Con-nor’s chief spokesperson and authority at the project. His responsibilities entailed overseeing of the work of the subcontractors, including coordinating and assisting in scheduling of the work. Daley unlocked and opened doors to various areas of the job site, and occasionally gave keys to the subcontractors and their employees, including Aldridge.
Daley did not assign work to Rustic’s employees, order supplies on their behalf, supervise them, or tell them what to do. Ron Russell, Rustic’s foreman, directly supervised and provided materials to Rustic’s employees, including Aldridge. When Russell was on vacation, Aldridge served as acting supervisor. Aldridge received compensation only from Rustic for his work on the project.
From November 27, 1997, until the end of August, 1998, Da
A few weeks later, on September 21, in the presence of Aldridge alone, Daley again referred to Lucas as a “fucking dumb nigger.” Aldridge turned and walked away. The next day, during the lunch break and following a conversation about sports, Daley referred to Aldridge as a “black bastard” in the presence of Russell and other pipefitters. Although angered by the remark, Aldridge did not respond.
Finally, on September 24, 1998, while Daley and Russell were driving to New Hampshire, Daley complained to Russell that Aldridge reaped the benefits of a prevailing wage job because he is a “fucking nigger.” On returning to the job site, Russell told Aldridge of Daley’s remark. Aldridge became visibly upset. Russell also told Rustic’s project manager, Chad Duboc, of Daley’s comments. Aldridge informed John Duboc, Rustic’s owner, about Daley’s remarks and requested that he (Aldridge) be removed from the work site. John Duboc told Aldridge that Rustic needed him at the project and denied his request to work elsewhere.
Aldridge wrote a letter, dated September 30, 1998, and addressed “To Whom It May Concern,” detailing the four incidents. He gave the letter to Lucas and then to a union business agent in the hope that the letter would find its way to O’Connor, which it did.
Joseph Vogel was O’Connor’s project manager for the UMassLowell project. Vogel visited the work site one or two times per week. In October, 1998, upon hearing that Daley had made racial comments to Aldridge, Vogel went to the work site and asked Aldridge, “Jarvis, what’s going on?” Aldridge responded angrily, “There’s nothing wrong with being a black man.” Aldridge told Vogel that he should “read the letter” and that he
Daley was away on his honeymoon when Vogel began his investigation. When Daley returned, Vogel told him not to report to the job site. On October 19, Vogel and other O’Connor officials met with Daley to discuss the charges. Daley adamantly denied making any racial slurs. Vogel then spoke with Russell and with Lucas, one of O’Connor’s own employees. Russell corroborated Aldridge’s account, advising Vogel that he would “back his man.” Lucas denied ever being directly subjected to discrimination in any form by Daley; but when O’Connor presented Lucas with a written statement to that effect, Lucas refused to sign the document.
O’Connor concluded its investigation without again speaking with Aldridge, without disciplining Daley, and without notifying Aldridge of the results of its investigation or that Daley would be returned to the work site. In its internal investigation summary, O’Connor took the position that “[sjince the specific situation is not known at this time, we will wait until a ‘claim’ is actually in house and review before taking action. (The term claim in house is referencing an ‘official action’ generated against O’Connor ... — this might not happen at all).” O’Connor reassigned Daley to the project job site. Daley had been off the site for two weeks while on his honeymoon and an additional two weeks while the matter was investigated. Upon seeing Daley back at the job site, Aldridge packed up his tools and left work that, in his words, he loved — a job with “good money” and at which he worked with “good people” — because he could no longer tolerate working there while Daley was present.
The hearing officer credited the testimony of Aldridge and his wife that at the time of the racial remarks, Aldridge began coming home from work very disturbed and angry. He confided to his wife that his attitude was in response to Daley’s racial slurs. Aldridge experienced physical manifestations of distress. He lost weight and had difficulty sleeping. He became withdrawn and isolated; he stopped playing with his children, ceased communicating with his wife, and locked himself in his room to avoid contact with them. Aldridge’s outlook improved temporarily when Daley was away, but the withdrawn behavior returned when Daley returned to the job site.
The MCAD did not rest its decision on G. L. c. 151B, § 4(1), under which Aldridge brought his claim.
Instead, the MCAD ruled that O’Connor was liable to Aldridge under G. L. c. 151B, § 4(4A), inserted by St. 1989, c. 722, § 14, which makes it an unlawful practice:
“For any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter . . . .”
Guided by one of its decisions
We agree with the MCAD that O’Connor could not be liable to Aldridge under § 4(1) because there was no employment relationship between O’Connor and Aldridge.
We also agree with the MCAD that O’Connor, the general contractor, is liable to Aldridge, the employee of a subcontractor at the work site, under § 4(4A). Where on the present facts we conclude that O’Connor is liable to Aldridge for failing to remedy a racially hostile work environment of which it had notice, we need not resolve the more difficult question whether O’Connor could be liable under § 4(4A) solely on account of Daley’s remarks without regard to its awareness of those remarks.
Although no Massachusetts appellate decision ever has interpreted § 4(4A) to make an employer liable to someone other than its employee, the statutory language admits of such a result.
In our view, the present problem lies in the application of § 4(4A) not to acts of which O’Connor was aware but to acts of O’Connor’s employees of which O’Connor was not aware. We acknowledge that, generally speaking, a corporation is a legal entity that must act through agents and employees. Nevertheless, we are concerned that broad application of this principle in the context of § 4(4A) could produce untoward results not contemplated by either the language or the intent of that subsection.
Unlike the language of § 4(1), as appearing in St. 1989, c. 516, § 4, which contemplates derivative liability by making it unlawful for “an employer, by himself or his agent,” to engage in discriminatory practices, the language of § 4(4A), by contrast, omits any reference to agents and speaks only to the direct liability of a “person.” Nor does the tort doctrine of respondeat superior dictate vicarious liability under § 4(4A). “[RJespondeat superior is the proposition that an employer, or master, should be held vicariously liable for the torts of its employee, or servant, committed within the scope of employment” (emphasis supplied). Dias v. Brigham Med. Assocs., 438 Mass. 317, 319-320 (2002). See Kavanagh v. Trustees of Boston Univ., 440 Mass. 195, 198 (2003). A discrimination action under G. L. c. 151B is, however, a statutorily created right, not a common-law tort. See Jancey v. School Comm. of Everett, 421 Mass. 482, 500-501 (1995) (despite historical connection statute prohibiting discrimination
That principles of vicarious liability operate differently, and that caution is in order in applying such principles throughout the various subsections of G. L. c. 151B, § 4, is evident from College-Town, 400 Mass, at 163-167. There, the court considered the scope of an employer’s vicarious liability under § 4(1) for discrimination in the workplace arising from the acts of its agent. Taking note that language of § 4(1) “prohibits discrimination by ‘an employer, by himself or his agent,’ ” the court concluded that the Legislature had made clear its intent to impose vicarious liability under that section. Id. at 165, quoting from G. L. c. 151B, § 4. “It is clear that the Legislature intended that an employer be liable for discrimination committed by those on whom it confers authority.” College-Town, supra. Guided by the Legislature’s expressed intent, and without resolving the extent to which “G. L. c. 151B, § [4(1)], imposes an affirmative obligation on an employer to ensure that its workplace is not pervaded by harassment based on race, color, religious creed, national origin, sex, or ancestry, regardless of [its] source,” the court held that the employer was “vicariously liable for the acts of its agents — its supervisory personnel.” Ibid.
Significantly, in our view, College-Town limited the employer’s vicarious liability under § 4(1) to the acts of its supervisory personnel, not those of all of its workers, as would have been the case in a common-law tort. We note, as well, that the considerations relied on in College-Town for holding an employer vicariously liable under § 4(1) for its supervisor’s discriminatory actions either do not exist, or exist with diminished force in the context of a claim under § 4(4A) by a person like Aldridge who is not part of the employment unit. When the claimant is not part of the employment unit, the supervisor does not exercise direct supervisory authority over him. Nor does harassment by the supervisor carry the same implied threat of punishing resistance through exercise of supervisory powers as exists within the employment unit. See id. at 165-166. Likewise absent is the concern regarding the anomaly that a notice requirement creates when the perpetrator is also the supervisor to whom notice would be given by an
We are concerned that application of principles of vicarious liability enunciated in College-Town for a claim under § 4(1), to a claim under § 4(4A), would render an employer strictly and immediately hable for discrimination directed at nonemployees that it had no opportunity to control. Such liability would arise regardless of the employer’s knowledge of the discrimination, regardless of the remedial steps taken upon learning of the discrimination, and regardless even of the existence of strong preventive programs already in place to combat discrimination in the workplace. Such a broad application of derivative liability in the context of § 4(4A) could render an employer liable to a broad spectrum of third-party nonemployees, including subcontractors, delivery persons, and canteen workers who conduct their business on the employer’s work site.
Without need to do so, we are hesitant to resolve the difficult, uncertain, and potentially limitless contours of an employer’s derivative liability under § 4(4A) for acts of its own personnel of which it is unaware.
Having commenced an investigation into Aldridge’s allegations against Daley and corroborated the existence of at least those comments made in the presence of Russell, O’Connor failed to take the remedial steps that would discipline Daley and assure Aldridge that his concerns had been heard and that Daley’s behaviors would not be tolerated. Instead, O’Connor returned Daley to his job as work site superintendent. Such apparent inaction led directly, and reasonably predictably, to Aldridge’s leaving the work that he loved at considerable emotional cost. In such circumstances, we hold that an employer who is on notice of unlawful discriminatory acts by its supervisor, directed toward an employee of a subcontractor at a unitary work site, and fails to take reasonably adequate remedial action is liable under G. L. c. 151B, § 4(4A).
4. The severity and pervasiveness of the hostile work environment. We need not dwell long on O’Connor’s contention that there was insufficient proof that Daley’s conduct created a racially hostile work environment. Daley’s repeated, offensive, racist remarks were sufficiently severe or pervasive to create a hostile work environment. See Gnerre v. Massachusetts Commn. Against Discrimination, 402 Mass. 502, 508-509 (1988); Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 411 (2001); Cuddyer v. The Stop & Shop Supermarket Co., 434 Mass. 521, 522 (2001).
5. The emotional distress damages award. The award of emotional distress damages fully was supported by the record. See Stonehill College v. Massachusetts Commn. Against Discrimination, 441 Mass. 549, 576 (2004) (emotional distress damage award must be supported by “substantial evidence” and factual basis must be “made clear on the record”). Substantial evidence supports the hearing officer’s findings and conclusion that Aldridge suffered emotional distress, lost weight and had difficulty sleeping as a result of the racially hostile work environment. Aldridge came home from work very disturbed and angry as a result of Daley’s racial slurs. He experienced physical manifestations of distress, became withdrawn and isolated, stopped playing with his children, and ceased communicating with his wife. Such evidence was sufficient to support the determination that Aldridge suffered emotional distress and was compelled to curtail his life’s activities as a result of the unlawful discrimination. See ibid. The award of emotional distress damages and the other remedial action ordered was within appropriate bounds. See DeRoche v. Massachusetts Commn. Against Discrimination, 447 Mass. 1, 9 (2006).
Judgment affirmed.
Because Aldridge failed to submit any credible evidence of lost wages and did not argue that he was constructively discharged, the hearing officer did not award any back pay.
Aldridge filed a complaint against Rustic, but the MCAD found no probable cause on that claim. We express no opinion on the correctness of that determination. But see Modern Continental/Obayashi v. Massachusetts Commn. Against Discrimination, 445 Mass. 96, 108 (2005) (“employer may be held liable for failing to respond reasonably to [prohibited acts] of which it is aware or reasonably should be aware, even though the harassing acts are perpetrated by someone who is not an agent or employee of the employer”).
General Laws c. 151B, § 4(1), as appearing in St. 1989, c. 516, § 4, makes it an unlawful practice “[f]or an employer, by himself or his agent, because of the race, color, ... or ancestry of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. . . .”
The hearing officer concluded that Aldridge failed to establish that O’Connor exercised sufficient control over his employment to be deemed a joint employer where O’Connor neither paid Aldridge nor controlled the manner in which he performed his work.
The MCAD relied on Erewa v. Reis, 20 M.D.L.R. 36, 38 (1998), which
The hearing officer opined that the evidence supported a claim of individual liability against Daley under § 4(4A), although Aldridge had failed to name Daley as an individual respondent. See Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 492 (2000) (individual perpetrator can be held individually liable under G. L. c. 151B for sexual harassment of coworker).
We respectfully disagree with the concurrence that O’Connor is liable to Aldridge under § 4(1). Characterizing Aldridge’s claim a so-called “interference” claim encompassed within the plain language of § 4(1) begs the question whether O’Connor is a “covered employer” vis-a-vis Aldridge within the meaning of that section. That Daley scheduled work, unlocked and opened doors, and occasionally gave keys to subcontractors does not transform O’Connor into Aldridge’s employer ■— either directly or indirectly. Indeed, the Federal cases on which the concurrence relies to posit § 4(1) liability are inapposite, post at 563 nn.3, 4. Under the common-law agency test, no direct employer-employee relationship exists between O’Connor and Aldridge because O’Connor did not control the “means and manner” of Aldridge’s performance or supervise Aldridge’s work on the site. See Moland v. Bil-Mar Foods, 994 F. Supp. 1061, 1068-1071 (N.D. Iowa 1998) (employer’s right to control “means and manner” of worker’s performance is most important factor to consider). ■
Nor do Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973),
While neither the MCAD nor the Superior Court judge predicated O’Connor’s liability on this narrower ground, “we may affirm the lower court’s judgment on any ground supporting it.” National Lumber Co. v. Canton Inst. for Sav., 56 Mass. App. Ct. 186, 187 n.3 (2002).
Indeed, interpreted literally, the scope of § 4(4A) is almost without limit and might render redundant many of the individual provisions of G. L. c. 151B, § 4, that outlaw discrimination in particular contexts including the core protection against discrimination in employment afforded by §- 4(1). For present purposes, we need riot resolve that uncertainty.
To date, the few of our appellate decisions that have discussed § 4(4A) have considered it an adjunct to § 4(4), which is directed primarily at prohibiting retaliation for exercise of rights protected by the chapter. See Pontremoli v. Spaulding Rehabilitation Hosp., 51 Mass. App. Ct. 622, 624-625 (2001) (interpreting § 4[4A] in conjunction with § 4 prohibitions against wrongful discharge as confined to a “retaliation claim”); King v. Boston, 71 Mass. App. Ct. 460, 473 (2008) (sections 4[4] and 4[4A], read separately or together, essentially proscribe retaliation against those who exercise their rights under G. L. c. 151B and against those who assist or advocate for them). See also Bain v. Springfield, 424 Mass. 758, 765 (1997).
We discern no such limitation in the literal language of the statute.
The claim here is similar, but not identical, to that in Modem Continental. There, an employee of a general contractor brought a claim against her employer on account of actions of an employee of a subcontractor. Here, an employee of a subcontractor brought a claim against the general contractor on account of actions of the general contractor’s employee, i.e., its site supervisor.
The claim in Modern Continental that would have been analogous to Aldridge’s, a claim against a nonemployer for the acts of its agents, settled without a determination of liability. See Modem Continental, supra at 97.
We are reluctant to gloss over these problems by simply labeling Daley a
Concurrence Opinion
(concurring in the judgment and dissenting in part). I agree with the court’s affirmance of the judgment of the Superior Court. I conclude, however, that Thomas O’Connor Constructors, Inc. (O’Connor), is liable under the ordinary and long-standing rule in this Commonwealth that an employer is li
The claim by Aldridge against O’Connor is what is known as an “interference” claim — a claim that an individual or entity covered by statute has discriminatorily interfered with a complainant’s hiring, continued employment, promotion, or compensation by, or with other terms, conditions or privileges of his or her employment with, a third-party employer. I agree with the majority that such a claim may be brought under G. L. c. 15IB, § 4. Contrary to the majority, however, I believe that an interference claim is provided for in this case by the plain language of both G. L. c. 151B, § 4(1), and G. L. c. 151B, § 4(4A).
Section 4(1), as appearing in St. 1989, c. 516, § 4, prohibits a covered “employer” from discriminating on the basis of race or color against “any individual” with respect to the “terms, conditions or privileges of employment” not just its own employees or potential employees. O’Connor is a covered employer under c. 151B.
Identical language in the Federal antidiscrimination statute, Title VB of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (2006), has been virtually uniformly construed over the past thirty-five years to provide for an interference claim, starting with Judge McGowan’s decision for the United States Court of Appeals for the District of Columbia Circuit in 1973 in Sib
Sibley has been followed by all the Federal courts of appeals to consider the issue.
Further, as the majority holds, G. L. c. 151B, § 4(4A), added to § 4 in 1989, see St. 1989, c. 722, § 14, independently and explicitly provides for an interference claim, not merely against employers, but against all “person[sj,” defined by the statute to “included one or more individuals, partnerships, associations, [and] corporations . . . .” G. L. c. 151B, § 1, inserted by St. 1946, c. 368, § 4.
As for O’Connor’s liability for the actions of Daley, it is the long-established rule in our Commonwealth that an employer is responsible for the discriminatory acts of its supervisory personnel. See College-Town, supra at 156.
College-Town imposes vicarious liability upon employers under § 4(1) for the acts of supervisory personnel.
Because of its effects on the workplace and those, including Aldridge, who worked within it, such conduct cannot be characterized, as O’Connor suggests, merely as “four isolated comments.” Such racial discrimination is sufficiently severe and independently sufficiently pervasive to alter the conditions of employment and create an abusive working environment. Such racial discrimination, with its attendant public and private humiliation and degradation, cf. College-Town, 400 Mass, at 162, has consequences that may endure long after the offensive remarks are made. This conduct by O’Connor’s supervisor gave rise to liability under § 4 prior to its failures of investigation and remediation.
The majority expresses concern that recognition of interference liability could render “an employer liable to a broad spectrum of third-party nonemployees,” all the way down to “delivery persons . . . and canteen workers who conduct their business on the employer’s work site.”
An employer like O’Connor can not be liable to anyone unless its discriminatory acts interfere with a complainant’s employment, for example his or her hiring, promotion, or continued employment; his or her compensation; or the terms, conditions, or privileges of his or her employment. See G. L. c. 151B, § 4(1). With respect to a hostile work environment claim like the one at issue here, the employer, whether directly or vicariously liable, would have to engage in harassment or abuse sufficiently severe or pervasive to pose a “barrier[] to full participation in [the individual’s] workplace.” College-Town, 400 Mass, at 162.
There are substantial limits to such liability. On the one hand, it is unlikely that the actions of an employer toward, for example, a delivery person who comes on premises for a few minutes during his or her work day could rise to that level. On the other, the discriminatory creation by a company’s supervisor of a hostile environment in which on-premises cafeteria workers employed by a third party are required to work only can occur where the supervisor has the ability to create such an environment — and this is precisely the type of conduct the Legislature in enacting G. L. c. 151B, § 4, intended to root out. Compare King v. Chrysler Corp., 812 F. Supp. 151, 153-154 (E.D. Mo. 1993). The reason an interference claim by Aldridge is available against O’Connor here is precisely because Aldridge, unlike most employees of third-party employers, worked for a subcontractor of O’Connor at a work site that was controlled by O’Connor. Only that circumstance gave Daley the ability to render Aldridge’s work environment racially hostile.
Although I conclude that O’Connor’s liability arose prior to
Finally, because I conclude that O’Connor was liable for the discriminatory actions of its work site supervisor, I agree with the majority that the damages award properly should be upheld in full. An emotional distress damage award must be supported by “substantial evidence and its factual basis must be made clear on the record.” Stonehill College v. Massachusetts Commn. Against Discrimination, 441 Mass. 549, 576 (2004). As the majority describes, ante at 561, there was in the record substantial evidence supporting an award of emotional distress damages, and there was “substantial evidence of a causal connection between the complainant’s emotional distress and the respondent’s unlawful act.” DeRoche v. Massachusetts Commn. Against Discrimination, 447 Mass. 1, 7 (2006).
Under G. L. c. 15 IB, “employer” is defined as any “employer” with six or more “persons in his employ.” G. L. c. 151B, § 1, inserted by St. 1946, c. 368, § 4.
Sibley and its progeny do not, as the majority asserts, deem that in such circumstances an employment relationship exists. Ante at 555 n.8. As the language quoted in the text makes clear, those decisions impose liability in the absence of an employment relationship between the claimant and the defendant. See also, e.g., Moland v. Bil-Mar Foods, 994 F. Supp. 1061, 1073 (N.D. Iowa 1998) (Sibley line of cases imposes liability “even though the individual is not an employee of [the defendant] employer”). As the majority notes, the parties do not challenge the hearing officer’s finding that Aldridge was not an employee of O’Connor.
See, e.g., Pardazi v. Cullman Med. Center, 838 F.2d 1155, 1156 (11th Cir. 1988); Christopher v. Stouder Memorial Hosp., 936 F.2d 870, 875-877 (6th Cir. 1991); Association of Mexican-Am. Educators v. California, 231 F.3d 572, 580-581 (9th Cir. 2000). See also Bender v. Suburban Hosp., Inc., 159 F.3d 186, 188-189 (4th Cir. 1998) (noting that at the time of the decision, “Every Court of Appeals to consider” the issue “whether Title VII allows indirect liability for an employer’s interference with an individual’s employment with third parties” had “followed the lead of the District of Columbia Circuit in allowing such a claim”). Only the United States Court of Appeals for the Second Circuit has rejected Sibley in any context, see Gulino v. New York State Educ. Dept., 460 F.3d 361, 374-376 (2d Cir. 2006), and a subsequent decision of that court makes clear that whether “Gulino closed the door entirely on the Sibley theory of interference liability in [the Second] Circuit” remains an open question. Salomon v. Our Lady of Victory Hosp., 514 F.3d 217, 233 (2d Cir. 2008).
See, e.g., Diana v. Schlosser, 20 F. Supp. 2d 348, 352-353 (D. Conn. 1998) (radio station subject to liability for hostile work environment harassment of employee of third party on-air traffic reporting business); Moland v. Bil-Mar Foods, 994 F. Supp. 1061, 1072-1073 (N.D. Iowa 1998) (defendant could face liability for hostile work environment at its plant which affected former employee of third party trucking company who was harassed while
Section 4(4A), inserted by St. 1989, c. 722, § 14, which has no cognate Federal provision, provides that it shall be an unlawful practice:
“For any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter.”
That two sections of our antidiscrimination law should have overlapping coverage is unremarkable. Compare, e.g., G. L. c. 151B, § 4(1) (making it unlawful for an employer to discriminate against an individual on the basis of sex with respect to the terms, conditions, or privileges of employment), with G. L. c. 151B, § 4(16A) (making it unlawful for an employer to sexually harass an employee).
Contrary to the assertion by the majority, ante at 558, College-Town did not “limit[] the employer’s vicarious liability under § 4(1) to the acts of its supervisory personnel.” It left open the question (not at issue here) of vicarious liability for the acts of employees below the supervisory level. See College-Town, supra at 165.
While the Superior Court judge did not address § 4(1), as the majority notes, “we may affirm the lower court’s judgment on any ground supporting it,” National Lumber Co. v. Canton Inst. for Sav., 56 Mass. App. Ct. 186, 187 n.3 (2002).
See Knight v. Avon Prod., Inc., 438 Mass. 413, 425 n.8 (2003); Buchanan v. Contributory Retirement Appeal Bd., 65 Mass. App. Ct. 244, 246 (2005).
The majority says that “[wjhen the claimant is not part of the employment unit, the supervisor does not exercise direct supervisory authority over him.” Ante at 558. But in a case like this where a general contractor hires subcontractors to assist with its own project, taking place in a unitary work site, the general contractor’s supervisor does exercise supervisory authority over the workplace environment of the employees of the subcontractor, and it is that authority that provides him or her with the ability to render that environment discriminatorily hostile. The majority also notes that harassment by O’Connor’s supervisor does not carry “the same implied threat of punishing resistance through exercise of supervisory powers as exists within the employment unit.” Ibid.., citing College-Town, 400 Mass, at 165-166. The College-Town court referred to that factor as part of its explanation for rejecting the defendant’s claim that “the authority conferred on a supervisor is not related to the creation of a sexually harassing environment.” College-Town, 400 Mass, at 165. College-Town involved sexual harassment, including a request by the supervisor that he and the complainant “get[] together.” Id. at 158. The point of the decision, though, was that supervisors were liable for discriminatory acts within the scope of their authority when that authority provides them the ability to create a hostile work environment “present[ingj a serious barrier” to “full participation in the workforce.” Id. at 166. Finally, contrary to the suggestion by the majority, College-Town did not in imposing vicarious liability rely upon any “restriction]” rooted in “chain of command considerations” on a complainant’s ability to notify of discrimination those above the supervisory level. Ante at 559.
The majority is also incorrect when it states that failure to impose vicarious liability would not create the anomaly — noted in College-Town — “that a notice requirement creates when the perpetrator is also the supervisor to whom notice would be given by an employee.” Ante at 558-559. If Aldridge had been discriminated against by a less senior O’Connor employee at the work site, a complaint to Daley, its work site supervisor, would have sufficed to put O’Connor on notice such that it would be liable if Daley “fail[ed] to remedy or report” it. College-Town, 400 Mass, at 167. It would be anomalous if Daley’s own discriminatory conduct did not similarly give rise to liability. Ibid.
In fact, failure to impose vicarious liability upon a general contractor like O’Connor that operates a unitary work site would be anomalous for an additional reason because recognizing such liability would impose no additional legal requirements upon the general contractor. Under College-Town, O’Connor
It was Daley’s conduct, not any subsequent actions or inactions by O’Connor, that created the hostile environment at the work site. I do not read the majority’s reference to “the general contractor, upon learning, failing] to take appropriate remedial action” to mean otherwise. Compare ante at 561.
While framed as an objection to vicarious liability, this really amounts to a reservation about the interference claim that the majority recognizes today,
The majority’s suggestion that it would be easier for a subcontractor’s employee to report discrimination to “the corporate hierarchy of the perpetrator’s employer” when the perpetrator works for the general contractor, ante at 559, takes inadequate account of the nature of the workplace. While that
After O’Connor’s project manager told Aldridge that he would “get to the bottom of it,” no one from O’Connor ever spoke with Aldridge again regarding his complaint, either to take his statement, to tell him what steps the investigation would entail, to inform him of its progress, or to explain its conclusion. See College-Town, 400 Mass, at 167-168. The hearing officer found that, instead of fulfilling its legal obligation, O’Connor “began taking a defensive posture in anticipation of litigation.” When asked, Lucas apparently reported to O’Connor that he had only heard of the racial slurs second-hand through Rustic Fire Protection’s Ron Russell and Aldridge. O’Connor prepared a statement for Lucas to sign that read, “I have never been harassed nor suffered discrimination from any O’Connor Constructor Supervisory or other personnel during my employment with O’Connor Constructors up to and including this date.” Lucas refused to sign.
An internal document makes clear that O’Connor terminated the investigation after a deliberate decision not to complete it, choosing instead to wait until a claim, if any, was filed against it. Indeed, the investigation did not even reach a conclusion about what had happened. Instead, Daley simply was returned to the work site. Cf. id. at 168.
There was evidence supporting the award with respect to the first three of
