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26. Was the Claimant Being Discriminated Against or Harassed at Work?

ALERT:   IN LIGHT OF THE COVID-19 EMERGENCY, ASPECTS OF THE UI PROCESS HAVE BEEN MODIFIED.  VISIT https://www.masslegalservices.org/covid-19-and-ui FOR CURRENT INFORMATION.

Specific language in G.L. c. 151A, § 25(e), ¶6 precludes disqualification if the separation was caused by sexual, racial, or other unreasonable harassment but only where the employer, its supervisory personnel, or its agent knew or should have known about the harassment.

DUA’s regulations governing harassment in the workplace as it bears on UI eligibility are helpful to advocacy in these cases.  The regulations define what constitutes racial, sexual, or other unreasonable harassment. 430 CMR 4.04(5)(a) and (b). Further, the regulations provide that in cases of alleged racial, sexual, or other unreasonable harassment, where the employer, its agents, or other supervisory employees knew or should have known about the harassment, the employee need not take reasonable, or even any, steps to resolve the situation before leaving. 430 CMR 4.04(5)(c)¶¶ 1 and 2. See Tri-County Youth Programs, Inc. v. Acting Deputy Director of the Div. of Employment & Training, 54 Mass. App. Ct. 405, 413, 765 N.E.2d 810, 817 (2002).

To determine whether a claimant’s reason for leaving work is due to harassment, DUA looks to the totality of the circumstances surrounding the claimant’s separation, such as the nature of the harassment and the context in which the alleged harassing incident occurred. 430 CMR 4.04(5)(d).

An employer is not deemed to have knowledge of harassment by a coworker or a customer, and an employee is required to report it unless he can prove that the employer knew or should have known of this harassment.

For harassment cases other than racial, sexual, or other unreasonable harassment, the claimant must notify the employer, unless knowledge is imputed, and may leave if the employer fails to take prompt and effective remedial action. 430 CMR 4.04(5)(c)¶ 3.

In one Board case where failure to bring the matter to the employer’s attention did not defeat the claim, the Board found that the sales manager, who had harassed the claimant by belittling her and repeatedly yelling at her, was a longtime friend of the general manager and therefore it would have been futile for the claimant to report the problem. BR-122882-A (8/30/12).

The Board has recognized retaliation (flowing in one matter from a claimant’s reporting his legitimate concerns about management’s altering his time records) as a form of unreasonable harassment qualifying the claimant for UI benefits. Following the claimant’s complaint, management targeted him for truck inspections that were not in accordance with the employer’s policy and went to the claiment's home and took photographs of his property while the claimants was on medical leave, and the employer did not present evidence to show that other employees were treated similarly to the claimant. BR-121433-CTRM (10/31/2012).