By Marjorie Johnson, J.D.
The EEOC survived a motion for summary judgment in a Title VII lawsuit brought on behalf of a seasonal farm worker who claimed she was raped by a supervisor who entered her employer-supplied apartment under guise of needing to perform an “inspection” and retaliated against her after she reported the assault. A federal district court in Florida ruled that many triable issues existed, including whether the employer was entitled to the Faragher/Ellet defense, particularly since it never translated its sexual harassment policy into Mixteco (the native Mexican language that the employee and 65 percent of the workers spoke) and had received a prior complaint about the supervisor. The employee also advanced her assault and battery claim against the employer since it was questionable whether the supervisor accomplished the alleged rape by virtue of the employer/employee relationship (EEOC v. Favorite Farms, Inc., October 1, 2018, Moody, J.).
Raped in apartment leased from employer. The employee, who performed field labor, resided with her two children in housing that the employer provided and leased to her. She was supervised by the crew leader, whose duties included assigning the field laborers to apartments in these company-provided housing units.
On November 13, 2015, the crew leader allegedly visited her apartment and stated that he needed to inspect it to determine whether there was room to move additional people into the apartment. He then purportedly pushed her into a bedroom and raped her during the “inspection.” She reported the rape to management, who failed to adequately investigate her report and took no disciplinary action against her supervisor.
Suspension, warning, firing. About two weeks after reporting the sexual assault, she was suspended without pay. She also received a written warning on March 8, 2016 and was terminated about three weeks later. The EEOC brought this action against the employer asserting sexual harassment and retaliation. The employee subsequently intervened and added claims of assault and battery.
Retaliatory one-day suspension. The court squarely rejected the employer’s assertion that summary judgment was warranted on the retaliation claim since the employee did not suffer any adverse employment actions following her report of the crew leader’s rape. Significantly, she presented evidence that about two weeks after she reported the rape, she was suspended without pay. As the record showed that she earned approximately $5,000 a year and supported her two young daughters, even a few days without pay was a hardship for her and her family.
Therefore, a jury could find that this was tangible harm, even if the employer later reimbursed her for some of the unpaid time. As the Supreme Court noted in Burlington Northern, a reasonable employee facing the choice between retaining her paycheck and filing a discrimination complaint “might well choose the former” even if she eventually received back pay. Similarly, the Eleventh Circuit has noted that employers should not be permitted to “escape” liability by correcting the retaliatory act after the fact. Thus, even a one-day unpaid suspension could arguably deter a reasonable worker from making or supporting a charge of discrimination.
Written warnings and discharge. The employer’s arguments with respect to the written warning similarly failed as it was disputed whether the employee was also not paid for the strawberries she harvested that day. As to her termination, the record reflected that her employment ended while other farm workers continued working. It was also disputed whether the farm evicted her from her housing unit despite having never previously required its workers to move out during the off-season.
Faragher/Ellerth defense. There were also triable issues related to whether the employer was entitled to the Faragher/Ellerth defense. For example, it was unclear whether the employee received its anti-harassment policy and the record suggested that although she and 65 percent of the farm’s workers spoke only Mixteco (an indigenous language of Mexico), the farm never translated its policies into Mixteco. There was also evidence that the farm had knowledge of a prior sexual harassment complaint against the supervisor but failed to adequately investigate the complaint.
Moreover, the employee immediately reported the supervisor’s alleged rape and it was highly disputed whether the employer took prompt remedial action. For instance, she presented evidence that she sought and received a restraining order against him because she did not want to continue working in the same field near him after the sexual assault. However, the employer did not make a written report of her complaints and did not fully investigate until nearly one year later, in response to the EEOC’s investigation.
Vicarious liability for attack. Finally, triable issues also existed as to whether the employer could be vicariously liable for the assault and battery claims since the record suggested that the supervisor acted within the scope of employment when he allegedly raped her. While a sexual assault “typically falls outside the scope of an employee’s service to the employer, the inquiry is fact intensive and Florida recognizes an exception to the general rule if the employee/tortfeasor accomplished the tort by virtue of the employer/employee relationship.”
Here, a jury could find that the supervisor used his authority as her crew leader to gain access to her apartment in order to sexually assault her. Indeed, he indisputedly oversaw inspections of the farm’s housing units and was empowered to enter the units and assign the field workers to them. The record also suggested that the employer knew of his propensity to engage in sexual misconduct since another female field worker had reported that he had sexually harassed her, including an incident where he came to her housing unit and threatened her. Thus, a jury could find that he accomplished the alleged rape by virtue of the employer/employee relationship.
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