A wave of sexual harassment complaints filed with the Massachusetts Commission Against Discrimination has the agency seeking a 17 percent budget increase.
MCAD Chairwoman Sunila Thomas George asked state legislators to increase the agency’s $2.95 million annual state appropriation by $500,000. The MCAD would hire six new employees to work as investigators, mediators, trainers, and support staff.
“At the same time our workload is increasing, we are also witnessing a deluge of sexual harassment victims coming forward with their stories and seeking the assistance of the MCAD. Additionally, both private and public sector entities are requesting sexual harassment trainings at a staggering pace,” according to the MCAD’s Feb. 13 budget request.
The agency expects 2018 will continue to be an extremely busy year in terms of sexual harassment filings, Thomas George told Bloomberg Law.
54 Cases So Far in 2018
The agency received 29 sexual harassment complaints in January, compared to 13 complaints filed in January 2017.
For the period of Feb. 1-16, the MCAD received 25 sexual harassment cases, compared to five filed in the same period last year, Thomas George said. For 2018, that is 54 cases over the first six weeks of the year, compared to 18 in that period in 2017.
So what’s behind the increase?
“We’re seeing that victims are no longer feeling alone on this issue,” Thomas George said. “There’s been a real shift in public perception in what is unacceptable behavior.”
Women have less tolerance for sexual harassment, said Kate Fitzpatrick, a Massachusetts employment lawyer and principal of Doorways Employment Law.
“For many years, women just put up with this behavior. They were worried about the ramifications for their current job, and for their next job, if they complained,” she said. What has changed since the allegations against movie producer Harvey Weinstein, which spawned the #MeToo and Times Up movements, she said, “is what people, specifically women, are willing to accept.”
While Fitzpatrick said she has seen an uptick in sexual harassment cases coming through the door, she noted that the laws that regulate such behavior haven’t changed.
“From a legal perspective, MeToo is brand-new,” she said. “It will take awhile” to see the law catch up.
As there is more awareness—and more concerns—regarding sexual harassment, more employers are asking for guidance and workplace training.
“There is more awareness on this issue by employers. The issue is certainly more in the news now, " said Bradley MacDougall, vice president of government affairs at the Associated Industries of Massachusetts, a statewide business and lobbying group. AIM has also received more employer interest regarding workplace culture and change management programs, he said, which also address employee behavior.
But the new focus on sexual harassment has also created a backlash within some companies, said Debra Dyleski-Najjar, a management-side labor benefits attorney with Najjar Employment Law Group P.C. and legislative director for the state council of the Society for Human Resource Management.
She said that at one end of the spectrum, there have been more victims of sexual assault in the workplace who are coming forward. Assault is a crime that should be prosecuted criminally, Dyleski-Najjar said.
“At the other end, we’re seeing a lot of conduct that before would be shrugged off, or not reported,” she said. “We’re seeing internal complaints within companies, where flirtation and casual touching is being escalated to investigation and/or discipline.” As a result, some male employees are expressing reluctance to be alone with female co-workers, Dyleski-Najjar said.
95 Percent Probable Cause
Thomas George said that the “fact pattern” in most sexual harassment complaints “comes down to a he said/she said.” As a result, an MCAD investigator finds probable cause about 95 percent of the time, a much higher rate than other types of complaints. The majority of sexual harassment cases investigated by the agency are resolved by settlement before a public hearing, she said.
Because of the nature of sexual harassment claims, Thomas George said, “we can’t just put resources on the front end; we have to make sure we can handle all cases, all the way through.”
In its budget request to the legislature, the MCAD noted that investigators with the New York Human Rights Commission ($12.14 million in state funding) have caseloads of 35 cases per investigator and investigations take an average of five months to complete, while investigators with the Connecticut Commission on Human Rights & Opportunities ($5.92 million in state funding) have caseloads of 60 and average about a year to finish an investigation.
By contrast, MCAD ($2.95 million in state funding) investigators are managing 110 cases at a time, and investigations last an average of 18 months.
Gov. Charlie Baker (R) will unveil his version of the state budget later this year.