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  • Writer's picturePavan Khoobchandani

Employer Avoids Liability Even With "Disturbing Evidence Of Sexual Assault"

A recent case out of the United States Court of Appeals for the Fourth Circuit highlights the frustration that employees that have been victimized in the workplace can face when attempting to get justice after suffering admittedly horrible, improper, illegal actions.

The plaintiff in this case worked for government contractor BAE Ordnance Systems at an Army ammunition plant in Virginia. She was sexually assaulted at work on two occasions by a coworker. While she did not report the assaults to BAE HR or through the company reporting channels, she did report it to a co-worker. The company learned about the assaults a couple of months after they occurred when the plaintiff was being interviewed about an allegation of sexual assault of a different employee.

BAE's investigation revealed that the same employee had sexually assaulted at least four female employees over a period of several years. He was fired and subsequently plead guilty to federal criminal charges relating to the assaults.

The plaintiff, after the assaults, began to suffer from serious health conditions including migraines, depression, and panic attacks. BAE worked with her to take time off when she needed it, but when she was at work she was subject to a number of incidents of harassment by co-workers such as grabbing, profane and inappropriate sexual comments, and being berated for "putting a man in prison and taking him away from his family."

BAE disciplined the people that were harassing the plaintiff and worked with her to get placed on a particular job assignment that she wanted.

Nevertheless, the plaintiff continued to suffer with fear, intrusive thoughts, and difficultly sleeping, and had to take disability leave, which BAE accommodated.

Ultimately, she filed a lawsuit against BAE and her harasser for hostile work environment under Title VII, retaliation, assault and battery, and negligent retention. The trial court granted summary judgment in favor of BAE, dismissing the claims against it.

On appeal, the Fourth Circuit agreed with the trial court that the claims against BAE had no merit.

While the appellate court noted that there was "disturbing evidence of the sexual assaults and other workplace harassment," and that there was "shocking evidence" of generally sexualized work environment, it found that the evidence was not sufficient to establish BAE's liability.

The reasons for the dismissal of BAE are instructive to all employers:

  • With respect to the hostile work environment claim, there was no evidence that BAE knew about the harassment and failed to try to stop it. If a harasser is the victim's supervisor, a company can be held vicariously liable for the harassment. However, if the harasser is a co-worker, an employer will generally only be held liable if it knew or should have known about the harassment and didn't stop it. Here, BAE had harassment reporting procedures that it trained its employees on, but the plaintiff did not use them to report the assaults. And, once BAE learned about the harassment, it took "swift action" in an attempt to stop any further harassment.

  • With respect to the retaliation claim, there was no evidence that the co-workers' retaliatory harassment was imputable to BAE and there was no evidence that BAE subjected the plaintiff to an "adverse employment action."

No one's perfect, but BAE did a lot of things right here, starting with a complaint reporting system that it trained its employees on. Once it learned about the harassment, it launched an investigation, conducted interviews, barred the harasser from the worksite while the investigation was ongoing, and, in the court's determination, took reasonable action to end the harassment.

Here's the lesson: Take every allegation seriously and investigate fully. It can be very disruptive to have multiple employees out of leave and to coordinate an investigation with a lot of moving parts. But it's the right thing to do. Employers can't always protect everyone, but it's their responsibility to the best job they can.


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