Employment Law Daily Rehiring employee’s attacker supports hostile environment, retaliation claims
Friday, February 2, 2018

Rehiring employee’s attacker supports hostile environment, retaliation claims

By Lorene D. Park, J.D.

The “mere presence” of a male coworker who was rehired a year after drugging and sexually assaulting a female employee was enough to establish her hostile work environment claims, held a federal court in Pennsylvania, denying a motion to dismiss. Also, her claim that she repeatedly shared her concerns with the owner was enough to show he could be held individually liable under state law and the auto dealership could be liable under Title VII. The retaliation claim also survived based on evidence that her position changed after she complained and on evidence that, rather than addressing her concerns, the owner told her to put on her “game face” and “fake it” for the team (Connors v. Jim Shorkey Family Auto Group, January 30, 2018, Bissoon, C.).

Drugged and assaulted by coworker. The employee worked as a sales rep for an automobile dealership from September 2013 through October 2016. On October 18, 2016, she was drugged and sexually assaulted by a coworker during a work-related trip to Las Vegas. The employer investigated and found that he had sexually assaulted the employee, but gave him the option of resigning in lieu of termination, which entitled him to severance and commissions. Meanwhile, the employee suffered severe emotional distress and had to seek medical treatment.

Assailant rehired. A year after the assault, the company owner informed the employee that he intended to rehire her assailant. She told him numerous times that she would be very upset and her mental health would deteriorate, and in response he gave her four options: (1) move to a different dealership; (2) accept a different position at the same dealership for less pay; (3) remain in her position and deal with having to work with her assailant; or (4) quit.

“Fake it” for the sales team. Finding these options unviable, the employee used up her vacation time to think things over. While she was out, her schedule was changed and she was moved to a lesser position. When she returned, the owner told her to “put your game face on” and “fake it” for the sales team. He also said she should “control her emotions.”

October 31 was the first day the employee had to again work with her assailant and she claimed that “memories returned and she was physically ill.” The owner still refused to acknowledge her anguish or to provide an option that would allow her to keep her current position or make a similar income, so she left. She sued the dealership and the owner for sexual harassment and retaliation under Title VII and the Pennsylvania Human Relations Act (PHRA).

Assailant’s “mere presence” created hostile work environment. Denying the defendants’ motion to dismiss, the court found the employee sufficiently alleged that, by rehiring the individual who allegedly drugged and sexually assaulted her a year earlier, the defendants knowingly subjected her to a hostile work environment. In the court’s view, “any reasonable person” would feel that the assailant’s “mere presence in the workplace created an abusive environment.”

Furthermore, given the employee’s allegations that she shared her concerns with the owner numerous times, the court found that he “certainly may be held individually liable under the PHRA” and her complaints could give rise to employer liability under Title VII based on a theory of respondeat superior. Her claims were therefore viable.

Retaliation. The court also rejected the defendants’ argument that the employee’s complaints to the owner did not constitute protected activity. While they asserted that “an employee cannot dictate that the employer select a certain remedial action,” courts have held that an employee’s complaints about a failure to take adequate remedial action can constitute protected activity. And according to the employee, rehiring her assailant wasn’t “remedial” at all but was, in itself, the action that created the hostile work environment.

As for the defendants’ contention that the employee did not suffer any adverse employment action, the court found that it was sufficient that she claimed her schedule and job responsibilities were changed. Also, the owner’s statements to the employee that she should “put her game face on” and “fake it” for the sales team could constitute “circumstantial evidence of a ‘pattern of antagonism’” that could also give rise to an inference of retaliation.

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