SENATE DOCKET, NO. 1624        FILED ON: 2/18/2021

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1036

The Commonwealth of Massachusetts

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PRESENTED BY:

Cindy F. Friedman

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to sexual harassment.

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PETITION OF:

SENATE DOCKET, NO. 1624        FILED ON: 2/18/2021

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1036

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 939 OF 2019-2020.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act relative to sexual harassment.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. The General Laws are hereby amended by inserting after Chapter 151F the following chapter:-

Chapter 151G. 

UNLAWFUL SEXUAL HARASSMENT AND DISCRIMINATION IN PROFESSIONAL INVESTING.

Section 1. As used in this chapter, the following words shall have the following meanings unless the context clearly requires otherwise:

“Historically disadvantaged members of protected classes”, members of protected classes that have historically received less in venture capital funding than their respective shares of the population.  

“Professional investor”, one or more persons, including but not limited to, a bank, bank holding company, savings institution, trust company, insurance company, investment company registered under the Federal Investment Company Act of 1940, pension or profit-sharing trust or other financial institution or institutional buyer, licensee under the Federal Small Business Investment Act of 1958, partnership, association, corporation, legal representative, trustee, trustee in bankruptcy, receiver, and venture capital fund, whose business includes sponsoring, guaranteeing or granting funds or engaging in investment transactions. 

“Protected classes”, race; color; religious creed; national origin; sex; gender identity; sexual orientation, which shall not include sexual orientation involving minor children as the sex object; age; genetic information; ancestry; status as a veteran; handicap; or pregnancy or a condition related to said pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child.

“Venture capital fund”, shall have the same meaning as defined in 17 CFR § 275.203(l)-1. 

Section 2. (a) It shall be unlawful for a professional investor doing business in the commonwealth to:

(1) make sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature either directly or indirectly through an intermediary when: (i) submission to or rejection of such advances, requests or conduct is made explicitly or implicitly a basis for business investment transactions, including the sponsoring, guaranteeing or granting of funds; or (ii) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s working relationship with a person by creating an intimidating, hostile, humiliating or sexually offensive environment; provided, that discrimination on the basis of sex shall include, but not be limited to, sexual harassment; and 

(2) discriminate against a member of a protected class in the sponsoring, guaranteeing or granting of funds or in making available funds; provided, however, that it shall not be unlawful under this clause for a professional investor to designate certain funds solely for historically disadvantaged members of protected classes and companies that historically disadvantaged members of protected classes direct, own or manage. 

Section 3. (a) A professional investor who commits an unlawful act under section 2 shall be liable for damages, including, but not limited to, compensatory, incidental, consequential, and punitive damages and injunctive and other appropriate equitable relief. A plaintiff may seek to recover such liability in any court of competent jurisdiction. The court shall, in addition to any judgment awarded to the plaintiff, award reasonable attorneys’ fees to be paid by the defendant and the costs of the action.

(b) The attorney general may bring an action for damages, together with the costs of the action and reasonable attorneys’ fees, against a professional investor who commits an unlawful act under section 2. Those costs and attorneys’ fees shall be paid to the commonwealth. The attorney general shall not be required to pay any filing fee or other cost in connection with such action.

(c) Any action based upon or arising under this chapter shall be instituted within 3 years after the date of the last alleged unlawful act.

(d) A professional investor against whom an action is brought alleging an unlawful act under paragraph (2) of subsection (a) of section 2 and who, within the previous 3 years and before the commencement of the action, has completed a self-evaluation of its investment decisions in good faith and can demonstrate that the professional investor has made reasonable progress towards providing a greater share of their funding to historically disadvantaged members of protected classes and companies that historically disadvantaged members of protected classes direct, own or manage, shall have an affirmative defense to liability under this section. For purposes of this section, a professional investor’s self-evaluation may be of the investor’s own design, so long as it is reasonable in detail and scope in light of the size of the investor’s financial assets. 

An investor who has completed a self-evaluation in good faith within the previous 3 years and prior to the commencement of the action, and can demonstrate that reasonable progress has been made towards providing a greater share of their funding to historically disadvantaged members of protected classes and companies that historically disadvantaged members of protected classes direct, own or manage in accordance with that evaluation, but cannot demonstrate that the evaluation was reasonable in detail and scope and consistent with standards issued by the attorney general, shall not be entitled to an affirmative defense, but may not be liable for punitive damages under this section.