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Legal Updates

Failure to Properly Respond to Harassment: $1 Million. Properly Trained Managers: Priceless.

A recent decision of the Massachusetts Supreme Judicial Court (“SJC”), Clifton v. MBTA, illustrates the potential risks of failing to train supervisors about how to investigate and resolve claims of workplace discrimination.  In Clifton, the SJC ruled that an employer may be liable for discrimination and retaliation that takes place over a period of years when supervisors fail to properly respond.

Before the Clifton case reached the SJC, a jury returned a verdict of $5.5 million in favor of the employee based on alleged discriminatory conduct and retaliatory responses to the employee’s internal complaints that took place over a period of 9 years.  Although the trial judge reduced the award, he nonetheless decided that the employee should receive $1 million in damages.  On appeal, the SJC ruled that damages could be assessed over such a lengthy period, and remanded the case to the trial court for a final assessment of damages.


In Clifton, a maintenance worker for the Massachusetts Bay Transportation Authority (“MBTA”) alleged that, beginning in 1986, he was subjected to “egregious racial harassment and retaliation” by co-workers and supervisors.  The alleged harassment included:  addressing the employee with racial and other objectionable epithets; making his wife the subject of a vulgar office prank; and enforcing rules against him that were not enforced against other employees in like positions.

Between 1986 and 1993, the employee complained to various supervisors and the MBTA’s equal employment opportunity (“EEO”) office.  In response, the employee was subjected to retaliation.  One supervisor called Clifton a “rat” and joined in the harassment.  Other supervisors did nothing to stop the offending conduct, the EEO office refused to investigate, and a senior manager advised the employee that he would not be considered for promotion until he stopped filing EEO complaints.

In 1993, the plaintiff filed a charge with the Massachusetts Commission Against Discrimination (“MCAD”), seeking damages for racial discrimination and retaliation.  This ultimately led to the large damages award.

The SJC rejected the MBTA’s argument that most of the discriminatory and retaliatory conduct took place outside the statute of limitations and, as such, could not be factored into the damages payment.  According to the SJC, the prior conduct, including the employer’s retaliatory responses to the employee’s internal complaints, was part of a single “continuing violation.”  This enabled the employee to sue for damages based on all of the alleged discriminatory and retaliatory conduct because one act took place within the limitations period.

Implications for Massachusetts Employers

In light of Clifton, employers should be aware that the 300-day limitations period for filing an MCAD charge will not necessarily shield a company from all liability based on discrimination or retaliation that took place years ago.  If the employee can show that a single recent act of discrimination or retaliation was part of a continuing pattern of misconduct, then the employee may be able to recover damages based on all of the misconduct, even if the worst of it occurred years earlier.

In light of Clifton, it is critical that employers:

  • Educate managers and employees about inappropriate conduct, including how to recognize and report such conduct;
  • Further train managers about their specific responsibilities, responding to inappropriate conduct or complaints of such conduct, and advising them of the risk of individual liability;
  • Designate specific individuals to receive complaints and train these individuals about how to respond to and investigate complaints;
  • Create and follow an investigation plan, including selecting objective, open-minded individuals to investigate complaints;
  • Promptly and thoroughly respond to workplace complaints;
  • Consider interim remedies (i.e., separation of parties, suspension, etc.) while the investigation is pending;
  • Impose appropriate remedial action if warranted by an investigation; and
  • Always follow-up to make sure inappropriate conduct, if any, has not resumed.

The Firm has extensive experience providing training to employees and managers, as well as conducting investigations and advising employees regarding investigations.  Please do not hesitate to contact one of the Firm’s attorneys for further information.