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Modern Continental/Obayashi v. Massachusetts Commission Against Discrimination9/7/2005
Suffolk.
January 6, 2005
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Sosman, JJ.
Anti-Discrimination Law, Sex. Employment, Discrimination, Sexual harassment.
Civil action commenced in the Superior Court Department on March 26, 2002.
The case was heard by Carol S. Ball, J., on a motion for judgment on the pleadings.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Modern Continental/Obayashi (Modern) sought judicial review of a decision by the Massachusetts Commission Against Discrimination (MCAD) finding Modern liable for sex discrimination when Modern failed to protect one of its employees from harassment by employees of one of Modern's subcontractors. A judge in the Superior Court affirmed the MCAD's decision, and Modern appealed. We transferred the case to this court on our own motion. Although we reject Modern's contention that an employer can never be liable for sexual harassment perpetrated by outside third parties, we agree that, on this record, Modern satisfied its obligation to its employee by making reasonable efforts to remedy the harassing conduct. The MCAD's decision to the contrary is not supported by substantial evidence, and instead reflects the imposition of an erroneous standard higher than reasonableness. We therefore reverse the judgment.
1. Facts and Procedural Background
On January 18, 1994, Whatleigh Edmands, a female employee of Modern, filed a complaint with the MCAD charging Modern with sex discrimination based on sexual harassment. She subsequently amended her complaint to add Mohawk Construction (Mohawk), one of Modern's subcontractors, as a respondent, but ultimately settled her claim against Mohawk. She amended her complaint again to add a claim that she was constructively discharged from Modern as a result of a hostile work environment. The investigating commissioner found probable cause to support the claim of sexual harassment, but no probable cause to support the claim of constructive discharge. The matter went forward to a public hearing solely on the sexual harassment claim. The hearing commissioner's findings on that claim are as follows, supplemented by uncontested details from the record.
Modern was the successful bidder on a public works project to prepare the eastern approach to the Ted Williams Tunnel, a portion of the Central Artery/Tunnel project (the so-called "Big Dig"). Modern subcontracted the iron work on the project to Mohawk. As a condition of its contract, Modern and all of its subcontractors entered into a project labor agreement with the construction trades unions, which required, inter alia, that all craft employees (including foremen) be union members, that all such employees be hired through exclusive union hiring halls, and that workers not be disciplined or terminated except for "just cause."
Whatleigh Edmands, an apprentice carpenter, was hired by Modern through the carpenters' union in October, 1993. She worked with four or five other carpenters on a crew supervised by foreman Charles Cofield. Numerous other tradespeople were on the site, including ironworkers employed by Mohawk. On November 3, 1993, Edmands was using one of the portable toilet facilities on the site when she heard scratching noises outside. Looking up, she saw someone peering through an air vent near the roof. The peeper was wearing a brown hard hat of a type worn exclusively by the ironworkers. When Edmands tried to exit, she found herself unable to open the door, as a tie wire had been fastened around the toilet enclosure. She screamed, and someone cut the tie wire to let
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