Three years ago, the Massachusetts Supreme Judicial Court held in Modern Continental/Obayashi v. Massachusetts Commission Against Discrimination that an employer may be held liable under Massachusetts state law for discrimination committed by persons who are not its employees. The Massachusetts Appeals Court recently held that the converse is also true: an employer may be held liable for the discriminatory acts of its employees against employees of another employer.
In Thomas O’Connor Constructors, Inc. v. Massachusetts Commission Against Discrimination, Jarvis Aldridge, an African American employee of Rustic Fire Protection (“Rustic”), was working on a construction project alongside workers employed by the general contractor on the project, Thomas O’Connor Constructors, Inc. (“O’Connor”). After being subjected to a number of racially offensive comments by one of O’Connor’s supervisors, Paul Daley, Aldridge wrote a letter detailing the remarks, which was ultimately sent to O’Connor. Upon receiving the letter, O’Connor conducted an investigation of Aldridge’s claims, directing Daley to remain off the job site in the interim. Although the investigation supported Aldridge’s allegations, O’Connor took no corrective action and returned Daley to the worksite. When Aldridge saw that Daley had returned, he quit.
Aldridge filed a complaint of race discrimination with the Massachusetts Commission Against Discrimination (“MCAD”), claiming that O’Connor was liable for Daley’s discriminatory acts. The MCAD found O’Connor liable, and a Superior Court judge affirmed.
On appeal to the Appeals Court, O’Connor argued that an employer can not be liable under state law for the discriminatory acts of its employees against third parties. The Court disagreed, holding 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 the Massachusetts anti-discrimination law. Because O’Connor failed to take any corrective action in response to Aldridge’s complaint, the Court affirmed the MCAD’s decision.
In concluding that an employer can be liable for harassment committed against third parties, the Appeals Court has opened another avenue of relief for employees under the Massachusetts anti-discrimination law. Not only may a plaintiff file suit against his own employer for failing to protect him from discrimination, but he or she may also file suit against the employer of the employee who committed the discrimination. In either case, liability will turn on the reasonableness of the steps taken in response to an employee’s complaint. Thus, the case is a reminder of the importance of maintaining a harassment policy that provides for a process to investigate and respond to complaints, including those lodged by an employee of another employer.