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Sexual Assault in the Workplace = Sexual harassment

womMost people have heard of the sex abuse cases against the Catholic Church and the Boy Scouts of America.  Those cases involve negligent failure by the organization to detect aberrant behavior by priests or scoutmasters.   On a negligence theory, the plaintiff has to show facts that would place a reasonable employer on notice that it has a situation that should be investigated.  But what if the abuse of a minor (or an adult victim) happens in the workplace?  Then the plaintiff/claimant adds the potent weapon of sexual harassment. Under the California Fair Employment and Housing Act (FEHA), Govt. Code sec. 12940 et seq., there is no need to even show notice. Under FEHA, the employer itself is strictly liable for workplace harassment by a supervisor. There is no need to rely on agency concepts. [State Dept. of Health Services v. Sup.Ct. (McGinnis) (2003) 31 C4th 1026, 1042; Myers v. Trendwest Resorts, Inc. (2007) 148 CA4th 1403, 1420.  

FEHA defines “supervisor” as anyone having authority from the employer to “hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” [Gov.C. § 12926(t) (emphasis added)]

The employer is strictly liable for sexual harassment of a job applicant by an employee authorized to interview and hire applicants. Although a job applicant has no “supervisor,” the alleged harasser is nonetheless the employer’s agent. [Doe v. Capital Cities (1996) 50 CA4th 1038, 1046, 58 CR2d 122, 127—casting director’s employer may be liable for sexual harassment of job applicant that occurred at casting director’s home]

That some of the sexual conduct occurred off-site is no bar to recovery.  Doe v. Capital Cities (1996) 50 CA4th 1038, 1047-1049.  As an example, in Doe v. Oberweis Dairy, 456 F. 3d 704 (7th Circuit 2006), a supervisor’s statutory rape of a minor employee occurred at his apartment. It was workplace related sexual harassment because their relationship began with flirtatious talk and erotic touching while at work: “The sexual act need not be committed in the workplace, however, to have consequences there.” [Doe v. Oberweis Dairy, supra, 456 F3d at 715]

The takeaway: if an employee is sexually assaulted or harassed in any way in the workplace by a supervisor/manager, the employer is liable.