MA Court: Efforts to Curb Harassment Must Be 'Reasonable'

October 12, 2005 ( - Employers won't be on the hook for the sexually harassing acts of nonemployees if the companies can't control the nonemployee's actions and if the company responds "reasonably" to the victim's complaints.

That was the ruling in a recent case from the Massachusetts Supreme Judicial Court in a sexual harassment case involving trades workers at a Boston public works project, according to a report on the SHRM Online Web site.

Key to the court’s analysis was a decision on whether contractor Modern Continental/Obayashi took proper action after receiving harassment complaints form apprentice carpenter Whatleigh Edmands. The court said at issue is whether the employer’s response was reasonably calculated to stop the harassing behavior, and that the judgment about reasonableness had to factor in the employer’s level of control over the nonemployee.

Satisfied that Modern took reasonable corrective action, the court rejected an earlier finding by a state hearing commissioner that Modern could have done more to identify and punish those responsible for the inappropriate conduct. Mohawk Construction, one of Modern’s subcontractors and the ironworkers’ union stymied Modern’s attempts to do so, the court explained. Mohawk employed the ironworker accused of the sexually harassing behavior.

The court found it significant that Modern had limited control over Mohawk’s employees, and no power to discipline or remove them.

The case started when Modern assigned Edmands to a public works project in Boston. Edmands was using a portable toilet at the job site when she noticed a then unidentified ironworker, employed by Mohawk, peering through the air vent. Edmands could not open the door because a tie wire had been fastened around the toilet enclosure.  She screamed until another worker cut the tie wire to let her out.

Two days later, a carpenters’ union steward advised Edmands that an ironworker, Joe Roselli, had admitted to fastening the tie wire around the toilet as part of a prank on another ironworker. Roselli apologized to Edmands. However, despite the insistence of Modern’s project manager, Mohawk refused to discipline Roselli or remove him from the job site. Explicit graffiti, directed at Edmands, began to appear on portable toilets and in other areas of the job site, but Mohawk officials again declined to help Modern identify the perpetrators.

Modern increased security and created designated male and female restroom facilities. Modern also gave brief, but poorly attended presentations emphasizing that sexual harassment would not be tolerated and circulated a memo to all workers at the site denouncing the presence of vulgar graffiti at the worksite.

The case is Modern Continental/Obayashi v. Massachusetts Commission against Discrimination, Mass. Sup. Jud. Ct., No. SJC-09356 (Sept. 7, 2005).