Employer’s Failure To Act on a Complaint Leads to Title VII Liability

August 01, 2007

Summary
One of the articles in our "Employment Law Briefing newsletter highlighting important issues in Employment Law, featuring the following articles: 1. No age discrimination when replacement not substantially younger 2. Be wary when dealing with perceived disabilities 3. Employer’s Employer’s failure to act on a complaint leads to Title VII liability 4. Is closeness in time enough to establish retaliation?

Was a corrections department liable under Title VII when a prison inmate raped an employee? That was the question before the Seventh Circuit in Erickson v. Wisconsin Department of Corrections.

A clerk worked for a corrections system's payroll department in an office located in the same building as a minimum-security prison. Some inmates performed janitorial services in the building.

A scary encounter

As the clerk worked late one night before joining her supervisors at an after-work party, she noticed an inmate-janitor staring at her in a way that made her uncomfortable. She promptly left to meet her supervisors.

Upon arriving at the party, the clerk immediately told five supervisors about the incident: the warden, the assistant prison superintendent, two sector chiefs and the human resources director. She told them she was "really freaked out" to find the inmate in her work area. The warden expressed regret and told her that they would make sure it didn't happen again.

Employer fails to act

But when the clerk returned to work a week later, the department had failed to take any action. The next day, while she was alone in the office after hours, the inmate attacked and raped her.

The clerk sued under Title VII, alleging the department had discriminated against her on the basis of sex by failing to prevent the sexual assault and had thus created a hostile work environment. A jury found for her, and the department appealed.

The Seventh Circuit noted that establishing a hostile work environment requires evidence from which juries can reasonably conclude that plaintiffs were:

-Subjected to unwelcome sexual conduct, advances or requests,
-Because of their sex,
-That was severe or pervasive enough to create a hostile work environment, and
-That a basis for employer liability exists.

Was the inmate an employee?

The department didn't dispute that the rape met the first three requirements for a claim of hostile work environment. Rather, it argued that, because the inmate wasn't its employee, no reasonable jury could have found it liable for the rape.

The department argued that employer liability for negligence can arise in a Title VII case only if an employer has notice of actual previous acts of sexual harassment. The department maintained that the clerk would have had to notify her supervisors of past, unreported sexual harassment to trigger its obligation to prevent future sexual harassment.

Unpersuaded, the Seventh Circuit held that adopting this argument would be contrary to Title VII's primary objective, which was "not to provide redress but to avoid harm." Employers need to take "all steps necessary to prevent sexual harassment from occurring." The greater the potential harm to the employee, the more vigilant the employer must be.

The court found that an employee's effort to bring a threat of potential sexual harassment to an employer's attention can be enough to give rise to liability.

The nature of the threat

In evaluating the department's failure to prevent the harassment, the Seventh Circuit considered the nature of the threat that the clerk relayed to her supervisors. She had never before been alone with an inmate and was unarmed. Her job didn't require her to deal with men in custody or be alone with them after hours. Further, when she told her supervisors about her encounter, they exhibited concern, and the assistant superintendent admitted at trial that he would have acted had he remembered his conversation with her before the rape.

The clerk's supervisors also knew of the high risk that male inmates might sexually harass female employees. And the inmate had recently been classified as high risk.

The Seventh Circuit concluded that a reasonable jury could find that, after the clerk's discussion with her supervisors, the department had "enough information to make a reasonable employer think" that the clerk was probably being sexually harassed, yet failed to take any remedial action as Title VII obliged it to do.

Negligence

Clearly, the department was negligent in failing to act on a complaint. It had a full eight days to remedy the situation that it should have recognized as urgent in light of the inmate's high-risk status. Even though the complaint was made verbally in a nonwork setting, the employer was obliged to take responsive action to avoid the foreseeable conduct.