“Person” really does mean “Person”

Does the term “any person” mean exactly that, or does it mean “any person in a supervisory capacity”? The former, said the United States District Court for the District of Massachusetts last month in Martin v. Irwin Industrial Tool Company.

But a recent post in Business West suggests that the court’s interpretation of the Massachusetts anti-discrimination statute was wrong. At issue are two paragraphs within section 4 of chapter 151B, which makes it unlawful for “any person” to discriminate or to “coerce, intimidate, threaten, or interfere with” another person in the enjoyment of their rights under the statute. The court’s supposed error was holding that the statute allows victims of sexual harassment to sue the harasser as an individual, even when that individual is not a supervisor. According to the post, the way the court construed the term “person” defies the intent of the Legislature and offends public policy. I disagree.

With all due respect to the attorney who wrote the post, the court’s decision is the only reasonable construction of the clear, unambiguous language of the statute. It is also consistent with the way the Massachusetts Commission Against Discrimination (MCAD) has been applying the law since 1994. The MCAD’s Sexual Harassment at Work Guidelines make this clear, citing the Commission’s 1994 decision in Carney v. Town of Falmouth Police Department.  If this was not how the Legislature intended the MCAD to apply the term “person” in the context of liability for sexual harassment, it has had 18 years to correct the situation.

As for the suggestion that in the context of sexual harassment claims “person” only means employer or an agent acting on behalf of the employer, the court pointed out that several provisions of the the statute make a distinction between individuals and employers. Paragraphs 9, 9A and 11A, for example, apply to “an employer” whereas paragraphs 4 and 4A — at issue in Martin — apply to “any person.” Excluding ordinary coworkers from the scope of paragraphs 4 and 4A would be reading into the statute an exception that the Legislature did not intend to make.

With regard to public policy, there is nothing novel, misguided, or unsettling about the way the United States District Court construed the term “person” in this case. To the contrary, over many years employers and employees alike in Massachusetts have reasonably relied on the MCAD’s consistent rulings on this issue. If the US District Court had departed from the MCAD’s decisions the outcome would have been confusion and uncertainty, neither of which constitute sound public policy.

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