SJC to weigh individual liability in campus harassment

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When it passed “An Act Prohibiting Sexual Harassment” nearly 40 years ago, did the Legislature mean to say that victims of sexual harassment in educational settings could only sue institutions and not individual faculty members or staff alleged to have abused an imbalance of power?

That question will be before the Supreme Judicial Court when it hears oral arguments in Sabatini v. Knouse on Jan. 5.

G.L.c. 214, §1C, creates a right for people to be free from sexual harassment, “as defined in” Chapter 151B, which covers workplace discrimination, and Chapter 151C, the state’s Fair Educational Practices law.

The SJC is now being asked to decide whether the “definition” incorporated into G.L.c. 214, §1C, is merely the one found in G.L.c. 151C, §1(e), which recites a straightforward definition of sexual harassment adapted for the unique forms of coercion that occur in an educational setting, or whether the definition also sweeps in language from §2 of G.L.c. 151C, which specifies that G.L.c. 151C applies only to “educational institutions,” not individuals.

According to both the trial judge and the Appeals Court, the answer is the latter: A plaintiff subjected to sexual harassment by a professor can sue the professor’s employer but not the professor.

In reaching that conclusion, the trial judge relied on two Massachusetts federal court decisions, Doe v. Fournier in 2012 and Doe v. Bradshaw four years later.

In Fournier, U.S. District Court Judge Michael A. Ponsor noted that the attorney for the defendant — a guidance counselor accused of having sex with a student — appeared to concede that Chapter 214 permits claims against individuals.

“An analysis of the statutory language, however, suggests otherwise,” he wrote.

In Bradshaw, U.S. District Court Judge Douglas P. Woodlock agreed.

“Chapter 214 merely expands who is protected by ch. 151C and the remedies available to them, while ch. 151C remains the source of the substantive law,” he wrote. “Thus, suit may only be brought under chapter 214 against educational institutions, rather than individuals, based on limitations rooted in Chapter 151C.”

But that cannot be what the Legislature intended, argues the appellant in Sabatini, supported by the Women’s Bar Association of Massachusetts, Jane Doe Inc., Victim Rights Law Center, and Massachusetts Employment Lawyers Association, which filed a joint amicus brief.

“Had the Legislature meant in Chapter 214 to limit liability to institutions, it could have done so, as it did when amending Chapter 151C at the very time it provided this separate cause of action,” the appellant argues in the brief.

The appellant also believes that the legislative history supports her position, though the appellee contends that she is making “sweeping generalizations about Legislative intent from scant sources.”

An uphill battle

Tenured faculty and principal investigators hold a unique amount of power over the undergraduate and graduate students and fellows who work with them, amicus brief author Naomi R. Shatz noted.

“There’s more of a chance of abuse of power than in many employment situations, where, yes, you may have a boss, but usually there are more people there that have some say over your work or that you can go to,” she said. “Whereas, if you are a grad student and you have a thesis advisor, or you’re in a lab and you’re working for a single scientist, that person controls everything for you. If they decide to harass you, you really have very little recourse.”

If the appellee in Sabatini were correct, the same language in Chapter 214, §1C, would have a different meaning depending on whether the victim was a student or an employee, Shatz argued.

“That’s obviously not how statutes work,” she said.

The appellee’s position creates a class of harassers who would be largely immunized from consequences, she added.

While the appellee’s position — accepted by the trial and appellate courts — is compelling, the fact that further appellate review was allowed suggests that this issue was important enough to command the SJC’s attention.

— Michael Stefanilo Jr., Boston

“When you’re talking about the Legislature setting up a system to address sexual harassment, that can’t be what they were trying to do,” she said. “That doesn’t make sense.”

Boston labor and employment attorney Alexandra D. Thaler said she believed that the appellant’s reading of the statute is the better one “for several reasons.”

First, the text of Chapter 214, §1C, uses the phrase “as defined in” immediately following “sexual harassment,” she noted.

“It makes sense to consider that only the definition of ‘sexual harassment’ found in Chapter 151C, §1, was imported into Chapter 214, not the entirety of Chapter 151C,” she said. “And that definition is not drafted in terms of the actor — whether an institution or an individual — but rather in terms of the conduct.”

In drafting §1C of Chapter 214, the Legislature could have been more precise and written “sexual harassment,” as defined specifically in §1 of Chapter 151C, Thaler allowed.

But given that §1 is the part of Chapter 151C that contains definitions, “the most straightforward reading is that only the definition within Section 1 is being referenced,” she said.

Thaler agreed with the appellant that if the Legislature had wanted Chapter 214, §1C, to merely provide a private right of action for violations of Chapter 151C, §2, it could have said so plainly. For example, it could have added other categories of actionable conduct to Chapter 151C, §3(a), which already provided a private right of action for students seeking admission and those enrolled in vocational training, she said.

“Instead, it wrote a broader declaration of the right to be free from sexual harassment and tied it to both 151C and 151B,” the latter of which does clearly permit claims against individuals, Thaler said.

Thaler also found compelling the argument that it would not make sense for the Legislature to have articulated such a strong policy against sexual harassment yet limit plaintiffs’ avenues of redress to just institutions.

All of that said, the appellant is “fighting a bit of an uphill battle,” given Ponsor and Woodlock’s opinions, Thaler believes.

“Those are well-regarded jurists, so their views will be considered carefully, although neither of these judges’ cases cited by appellee had significant analysis of the issue, possibly because of limited briefing on the subject by the parties in those cases,” she said.

Worcester employment, labor and higher education attorney Chelsie A. Vokes agreed that the appellant “has a steeper hill to climb,” given the precedent.

“While [the appellant] presents valid equitable and legislative intent arguments, neither will come into play if the SJC finds that the plain language of the statute prohibits suits against individuals,” she said.

Boston attorney Michael Stefanilo Jr. said he found it interesting that both parties, at least in some fashion, are advancing arguments rooted in textualism, effectively relying on the plain language of the statute.

“While the appellee’s position — accepted by the trial and appellate courts — is compelling, the fact that further appellate review was allowed suggests that this issue was important enough to command the SJC’s attention,” he said.

Practitioners on both sides will appreciate and benefit from the clarity the SJC provides when advocating for their clients, Stefanilo added.

If the SJC agrees with the courts below — and Ponsor and Woodlock — the difference for plaintiffs could be significant, as it would foreclose future plaintiffs’ autonomy to pursue recovery against individuals under Section 1C, Vokes noted.

In his brief, the appellee suggests that plaintiffs would not be left without recourse, pointing to Woodlock’s decision in Bradshaw, which suggests that, when read together, Chapters 214 and 151C impose strict liability on educational institutions for sexual harassment.

However, Vokes sees the issue as more unsettled, given the dearth of appellate authority.

“While this is not an issue in this case, if there is strict liability on schools, this will increase options for plaintiffs aside from suing the individual harasser, while significantly expanding liability for schools,” she said.

One of the appellant’s attorneys, Ellen J. Zucker of Boston, co-counsel with former federal judge Nancy Gertner, and the appellee’s attorney, Lisa G. Arrowood, both declined to comment in advance of the oral argument.

Harassment counterclaim

Plaintiff-in-counterclaim Kristin Knouse first met Dr. David Sabatini, a tenured professor in the biology department, when she was a graduate student at MIT.

She alleges that Sabatini, who served on her thesis committee, began inviting her to drinking sessions in his laboratory, making his first sexually charged statement to her after one such session.

With Sabatini’s support, Knouse landed a fellowship at the prestigious Whitehead Institute of Biomedical Research, where Sabatini was an executive and joint faculty member.

Knouse claims that Sabatini made his first sexual advance on her while she was still at MIT, conducting research in the lab of her mentor, Angelika Amon. When Amon was diagnosed with cancer, Sabatini offered his support, inviting Knouse to join him at a conference in Washington, D.C., where Sabatini allegedly said he would introduce her to important people in their field.

Instead, after they dined together, Sabatini ushered her back to his hotel room, where she initially tried to rebuff his advances before relenting, Knouse alleges.

An 18-month sexual relationship ensued, though Sabatini alleges that she was the “aggressor, who instigated and welcomed their sexual encounters,” pointing to text messages she sent him.

After a new director arrived at Whitehead, that new director launched an independent investigation into what Knouse and other women who had trained with Sabatini were reporting. The investigator concluded that Sabatini had violated Whitehead’s sexual harassment policy by improperly leveraging his “tremendous influence” over others to gain favor with Knouse and exploited differences in power and status “for his personal sexual satisfaction,” according to Knouse’s complaint.

Sabatini resigned from Whitehead and was facing an investigation by MIT when he sued Knouse, Whitehead and its director. Last month, Sabatini’s claim for defamation against Knouse survived a motion for summary judgment.

In Count I of her counterclaim against Sabatini, Knouse alleged a violation of G.L.c. 214, §1C, and G.L.c. 151C. Superior Court Judge Helene Kazanjian dismissed the claim on March 30, 2023, in a sweeping decision on the parties’ anti-SLAPP special motions and motions to dismiss.

On Jan. 14, an Appeals Court panel affirmed that aspect of Kazanjian’s decision, and the SJC granted further appellate review.

Contested history

In Knouse’s telling, the Legislature enacted G.L.c. 214, §1C, “as a component part of a broader legislative initiative to tackle the epidemic of sexual harassment.”

Five years in the making, “An Act Prohibiting Sexual Harassment” became law in 1986 amid a “growing national consensus” that sexual harassment is a form of discrimination. That consensus included the U.S. Supreme Court’s decision in Meritor Savings Bank v. Vinson, which held that sexual harassment is a form of discrimination under federal law. Also that year, a sexual harassment scandal at Westfield State College was “unearthed,” Knouse’s brief notes.

Knouse asserts that the new law was designed to remedy “three key deficiencies identified in the legal protections that existed at the time.”

The third of those deficiencies was that the statutory right to privacy, G.L.c. 214, §1B, contained no specific mention of sexual harassment as an invasion of privacy.

The right to privacy under §1B has been enforced without limitation against both corporate and individual defendants, Knouse notes.

“The Legislature plainly intended G.L.c. 214, §1C — G.L.c. 214, §1B’s statutory twin — to be likewise enforceable,” she argues.

But Sabatini counters that “[n]othing in the legislative history suggests that the Legislature intended to impose individual liability or believed that institutional liability would not be sufficient to accomplish its intentions.”

Knouse’s version of the legislative history is a selective one, Sabatini suggests.

“The various draft bills show no firm resolve to impose individual liability on teachers or principals or fellow students or anyone else,” he argues.

The plaintiff is also reading too much into the placement of §1C after §1B, Sabatini suggests.

“Knouse cites no case for the proposition that a statute’s meaning can be inferred from its neighborhood, and admittedly desultory research has not uncovered any,” his brief reads.

The plain language of the statute reveals the Legislature’s choice to give plaintiffs a right to sue only institutions, Sabatini argues.

“There is no principled reason for the Court to depart from its precedents to find such a right where none exists,” his brief concludes.