Workplace Harassment – Escalation

This post is about as sad an employment case as there is. A supervisor with a history of harassing female subordinates threatened her job if she did not accompany him to an out-of-town wedding, where he killed and raped her.

Her family then sued the employer for not adequately supervising him, and retaining him in spite of all the abuse he inflicted on women (he harassed and abused others as well). A federal district court granted the employer’s motion to dismiss. Meaning, even if everything in the complaint is true, the employer was not liable to the family.

The appeals court reversed. It would not be hyperbole to characterize its opinion as “strongly worded.” It utterly rejected the employer’s theory that this was not foreseeable.

This was based upon the supervisor’s extensive history of harassing females. The complaint alleged that he had harassed other females with no discipline.

The district court relied upon this supervisor’s failure to make explicit threats or use any violence prior in granting the motion to dismiss. The appellate court rejected this, relying on the basic factual theory that there were a lot of implicit threats, harassment escalates, and that the employer ignored the escalation, and hence its employee’s violence was foreseeable, and hence preventable. It did not remove the employee’s legal obligation to report such harassment, but it did essentially allow her to ‘piggyback’ on to others’ claims of harassment.

It closed with a footnote, containing cases where workplace harassment turned into murder. It wrote that such is, “…an old story that has been told too many times.”

I could not agree more.

So what should you do if you are in a situation like this?

  1. Report the harassment immediately. To human resources, and as high up in the company as you can.

  2. Retain counsel. Legal expertise is crucial in such a situation.

  3. Leave employment if necessary! Harassment at this level can equate to constructive discharge, meaning that even though you quit it is as if you were fired. Trust your intuition; your personal safety outweighs any potential legal claim. Always.

Extra Credit:

  1. The author of this opinion was David Hamilton, formerly of the Southern District of Indiana. Even at that subordinate court, he was willing to extend the law. He did so to Indiana’s blacklisting statute; this was later repealed by Indiana’s General Assembly.

  2. This blog normally focuses on Indiana cases. This is an Illinois case, but it was important enough that it compelled an explanation. Also due to its reliance on the Restatement of Torts, and not any particular Illinois statute, it would seem to apply under Indiana law as well.

  3. The procedural posture of the case was an appeal of a motion to dismiss. This means that when the facts are more fully developed, the employer might well win the case. It just was not entitled to some form of immunity for its employee’s criminal acts.

  4. The case is Anicich v. Home Depot U.S.A., Inc., decided by the Seventh Circuit 24 March 2017. Keeping with the blog’s policy, no link.