assault) may suffice. Alternatively, a steady barrage of sexual comments or treatment may
be “pervasive” enough to create a hostile working environment even though individual
comments or treatment may seem relatively innocuous when viewed in isolation.
Finally, to be unlawful, the conduct at issue must “interfere” with the job or alter its
conditions. Such interference could be an adverse job action (such as a termination,
suspension or demotion), but that is not required to establish a claim. Further, unlawful
harassment need not be intentional. “Innocent” conduct such as jokes may constitute sexual
In Massachusetts, Chapter 151B prohibits employment discrimination on the basis of
sexual orientation. Sexual orientation means “having an orientation for, or being identified
as having an orientation for heterosexuality, bisexuality or homosexuality.” Thus, in most
sexual orientation cases, the primary inquiry is whether the employer identified or perceived
the employee (or applicant) as gay, lesbian, or bisexual, and treated the employee (or
applicant) differently. However, discrimination on the basis of an employee’s
heterosexuality also is unlawful.
The prohibition against religious discrimination includes established and organized
faiths such as Catholicism, Judaism, Islam and Buddhism, as well as “any sincerely held
religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed
or required by an established church or other religious institution or organization.” Also, an
issue that frequently arises in this area is the obligation to provide “reasonable
accommodations” to the employee’s religion (such as a modified schedule) that do not cause
more than a minimal hardship or inconvenience to the employer.