Workplace Sexual Assaults Require More Than Oral Warnings 02-02-2005
- By Rita Risser, attorney at law

Ms. Loughman began working in a pizza restaurant in 2000 at the age of 17. From her first day on the job, co-workers whistled at her and frequently asked if she wanted to have sex with them. She reported them to her supervisor, who said he would talk to the men. However, the comments continued throughout her employment.

One evening, about 6 months after she began working, a co-worker put his arm around her waist, pulled her into an empty room and tried to kiss her. She was able to get out of the room but the co-worker would not let her out of the area for several minutes. The next day, she reported the assault to her supervisor. The supervisor told the employee if he did it again he would be fired, and he never assaulted the young woman again.

About a year later, when she was 18, the young woman walked into a cooler to get some cheese. Two co-workers walked in behind her, turned off the light, and closed the cooler door. One grabbed her, pinned her against the wall, grabbed her chest, and tried to put his hands down her pants. She screamed and swung her arm, hitting the other man. He fell back into the cooler door, opening it. At that point, the attacker backed away, and she ran out of the cooler. She reported this incident to her supervisor and to another manager. No action apparently was taken. However, neither man assaulted her again, although they did continue to make inappropriate comments.

About a year later, she was assaulted by another employee who ran his hands through her hair and put his hands up her blouse. She reported this incident. At this point, the District Manager got involved and investigated all three incidents. As a result, the man who assaulted her in the cooler was fired.

The young woman quit and sued for sexual harassment. Although the trial court threw out her case, the Seventh Circuit Court of Appeals reversed and allowed her to take her case to a jury. The restaurant argued that it had taken effective action. The Court of Appeals disagreed. The Court said:

"Considering the severity of the incidents, a reasonable jury could determine that simply talking to the people involved in the first two aggressive incidents was not a sufficient response. ...

"The mere fact that none of the employees physically assaulted Loughman a second time does not necessarily mean that [the restaurant's] response was adequate. See Smith, 189 F.3d at 535 ("Just as an employer may escape liability even if harassment recurs despite its best efforts, so it can also be liable if the harassment fortuitously stops, but a jury deems its response to have fallen below the level of due care.")...

"In addition, the consistent stream of harassment at the restaurant suggests that [the company's] policy was actually not very effective at all. [The manager] testified that she talked to the kitchen workers between 10 and 20 times about how to treat female employees, often in response to complaints from the female employees about inappropriate comments made to them. While a reasonable jury could view such diligence as evidence of [the company's] commitment to preventing harassment, it might also think the frequency of the discussions suggests that a different approach was needed. A jury could determine that, at some point, the management at [the company] needed to stop merely issuing warnings and start taking disciplinary action against the offending employees."

The Court noted that two other female employees also had complained of being assaulted by two of the same men. The Court said, "Put together with the recurring nature of the harassment against Loughman, a reasonable jury could find that [the company] was negligent in addressing its clear sexual harassment problems."

What this means to you: Many companies have policies that require immediate termination of employees who engage in fighting, physical horseplay or other violent conduct. Sexual assault is violent behavior and in most cases should result in immediate termination.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.