"An employer who passively tolerates the creation of a hostile working environment implicitly ratifies the perpetrator's misconduct and thereby encourages the perpetrator to persist in such misconduct, whatever the employer's precise legal relationship to the perpetrator," Justice Martha B. Sosman wrote. "Moreover, acquiescence on the part of the employer effectively communicates to the victim of harassment that her employer does not care about the hostile environment in which she must work, a message that can only operate to exacerbate the adverse effects of that hostile environment. In this context, an employer who is not part of the solution inevitably becomes part of the problem."

But under federal regulations and case precedent, and guidelines issued by the Massachusetts Commission Against Discrimination, the standard for employer liability is "reasonableness" or "negligence," and that the harassment did not in fact stop or something different or more could have been done is irrelevant, the high court explained. The inquiry simply is whether the employer took steps "reasonably calculated" to end the harassment, it said.

In finding Modern Continental/Obayashi liable to apprentice carpenter Whatleigh Edmands for sexual harassment by a subcontractor on Boston's "Big Dig" construction project, the MCAD imposed the wrong standard, the court held. The standard used by MCAD was closer "to the equivalent of strict liability," it said.

"The obligation to make reasonable efforts cannot be transformed into an obligation to make maximum efforts," Sosman wrote. "That Modern was not completely successful in eradicating all remaining vestiges of sexual harassment (i.e., occasional graffiti), and that one can envision additional steps that might have been taken (still with no guarantee of success), does not suffice to impose liability on Modern. Where the employer satisfied the threshold requirement of reasonableness, the MCAD cannot demand more."

Modern subcontracted its iron work to Mohawk Construction. Like Modern, Mohawk was bound by a project labor agreement to hire only union members through exclusive union hiring halls.

On Nov. 3, 1993, Edmands was using a portable toilet facility when she heard scratching noises, looked up, and saw someone wearing a brown hard hat of a type worn exclusively by the ironworkers peering through an air vent near the roof. When she tried to exit, Edmands found the door fastened shut with a tie wire, trapping her until someone answered her screams by cutting the wire. She saw 12 or so men in the area when she came out, but none of them responded to her inquiries on who had tied her in and spied on her.

She complained to her foreman, who assured her that he would "take care of this." A few days later, stewards for the carpenters' union and ironworkers' union told her that Joe Roselli, an ironworker, had admitted to tie wiring her into the toilet but denied peering in on her. She declined the suggestion that she meet with Roselli so he could apologize and she could see if he was the one who peered in through the vent, but Roselli was brought over anyway. She could not identify him as the person who peered in at her and later testified before the MCAD that he was not the peeper. She ultimately was unable to identify the peeper, even after reviewing videotapes of the work site as suggested by Modern's project manager, Sosman recounted.

Modern's project manager also contacted Mohawk's president and asked Mohawk to do its own investigation and transfer Roselli from the job site. Mohawk, however, refused those requests, and when Modern's equal employment opportunity officer later contacted Mohawk employees and officials they refused to provide him with any information.

A week after the peeping incident, the toilet was defaced with graffiti, including "a crude caricature of female genitalia." Edmands again complained to her foreman, who again said he would take care of it and the graffiti was removed. Further incidents of graffiti--none of which were witnessed by Edmands--were found over the ensuing months and removed.

Modern's project manager effectively transferred Roselli by revising the work schedule so that iron work was done at a different location. Edmands still encountered him and other ironworkers at shift changes, but they no longer worked in her immediate vicinity. In January 2004, she filed a charge with MCAD.

Within a few weeks, the padlocks on the women's toilets disappeared and some of the fencing separating male and female facilities fell or was knocked down. At the step two grievance meeting, Edmands complained and it was agreed that a security monitor would be hired to report on any further problems, including any incidents of sexual harassment or graffiti. Based on those results, the carpenters' union--with Edmands's agreement--decided not to pursue arbitration.

The ironworkers later returned to her work area when the side project to which they were assigned was completed, and Edmands told Modern's EEO officer that she was "nervous and scared," and asked the union to transfer her. Her new foreman remarked that women working outside the home adversely affected the economy, and when she reported his remark, an EEO officer said the foreman's comments used to be worse. She quit and took a job as a software engineer with a technology company.

After Edmands settled her claims against Mohawk, an MCAD investigating commissioner found probable cause of sexual harassment, but no probable cause of constructive discharge against Modern. A public hearing resulted in a finding that Modern failed to adequately respond to sexual harassment by Mohawk employees, an award of $50,000 in emotional distress damages, and an order requiring Modern to provide anti-discrimination training to all of its Massachusetts employees. The full commission affirmed that decision, adding attorneys' fees and costs, and Modern appealed.

Despite the plain language of Massachusetts General Laws 151B, § 4(16A), which seemingly limits an employer's liability to acts it takes personally or through its agents, MCAD guidelines expressly provide for potential third party liability where an employer "fail[s] to take prompt, effective and reasonable remedial action" upon learning an employee is being harassed by a nonemployee, Sosman explained. The degree of "control" the employer has over the third party is the key.

Since MCAD's interpretation is reasonable, it is accorded "substantial deference," the court said. Moreover, Equal Employment Opportunity Commission regulations interpreting federal law and cases implementing those regulations take the same view, it noted. In all instances, the standard is one of "reasonableness" as opposed to strict liability, it said, and it is irrelevant whether (i) the employer's efforts to end the harassment succeeded, (ii) better or more effective measures might have been implemented, or (iii) the steps taken were not the ones requested by the harassed employee.

Here, "[t]he MCAD's decision imposing liability on Modern erroneously held Modern to the equivalent of strict liability because its remedial actions were not entirely successful and because, in the MCAD's and the plaintiff's view, Modern could have taken other or additional steps faster than it did," the court wrote. "Instead, we must focus on the remedial steps Modern did undertake, and whether, in all the surrounding circumstances, those measures were reasonably calculated to end and deter any further harassment." The decision also betrayed a failure to properly assess the relationship between Modern and Mohawk, it added, stressing that the requisite evidence of 'control" was lacking.

"Here, Modern was not dealing with a customer or a client, but with a subcontractor's employees," Sosman said. "[T]here is no basis for assuming that the single incident involving the portable toilet, for which Mohawk's workers were responsible, or subsequent incidents of graffiti, which were probably (but not definitively) authored by Mohawk workers, would have allowed Modern to take any particular 'action against' Mohawk," she noted, citing the parties' contract and the project labor agreement's requirement for union workers and limitations on their removal from the site.

Chief Justice Margaret H. Marshall and Justices John M. Greaney, Roderick L. Ireland, Francis X. Spina, and Judith A. Cowin joined in the court's opinion

James B. Cox of Rubin and Rudman in Boston represented Edmands.

Richard D. Wayne of Hinckley, Allen & Snyder in Boston represented Modern Continental/Obayashi.

Beverly I. Ward of MCAD in Boston represented the commission.