She was raped by her supervisor, the company suspended her and put the harasser back to work. How mad did this make a federal jury?

Jury box cropped

Ken Lund from Reno, NV, USA [CC BY-SA 2.0], via Wikimedia Commons

Nope. Madder.

Here’s more from the EEOC’s press release announcing the $850,000 jury verdict.

A federal jury rendered a verdict on Dec. 19, 2018 awarding $850,000 in compensatory and punitive damages to a female farmworker at [an employer] in Dover, Fla., who was raped by her supervisor and reported it to police and management that same day, the U.S. Equal Employment Opportunity Commission (EEOC) announced today.

The evidence at trial showed that management at [the defendant-company], which primarily grows strawberries, failed to properly investigate the complaint, and instead sent the victim home from work without pay the next work day. [The employer] took no action against the harasser, leaving him to supervise women in the fields, despite evidence that this was not the first complaint of sexual harassment. Instead, [the employer] continued retaliating against the victim and forced her to take a leave of absence.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. 

Out of curiosity, I went back to the federal court’s earlier October 2018 opinion to see what kinds of defenses the employer raised at summary judgment. Here’s what I found:

  1. The employer unsuccessfully argued that the employee did not “experience” any retaliation. That is, there seemed to be some dispute in the record about whether the employer eventually made the rape victim whole by reimbursing her for any salary that she lost as a result of being sent home. But, even assuming that the company paid the employee all of her lost wages, there is case law suggesting that employers should not be permitted to “escape” liability by correcting the retaliatory act after the fact.
  2. The employee unsuccessfully argued that it had a Faragher/Ellerth defense. Where an employee suffers no adverse tangible employment action as a result of the harassment, the employer has access to an affirmative defense, which it can successfully interpose where it can show (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Here, however, there was evidence that the employee never received an employee handbook. Plus, most of the workforce spoke Mixteco, an indigenous language of Mexico. Yet, the record reflected that the employer never translated its policies into Mixteco. So, how would employees know how to complain about harassment? Plus, there evidence that the company did not make a written report of the complaints and did not thoroughly investigate the alleged rape until nearly one year later in response to the EEOC’s investigation.
  3. The employer unsuccessfully argued that the supervisor’s actions were outside of the scope of his employment. You may have been thinking to yourself that, surely, an employer would not authorize rape. However, the court noted that “a jury could find that [the supervisor] used his authority as her supervisor and as [a] foreman and crew leader to gain access to [the victim’s] apartment in order to sexually assault her.” Plus, the company was aware of previous allegations against the supervisor.

Hopefully, you don’t have a workplace story with such unfortunate facts to rival this one. But, now you have some tips on proactive and reactive steps that your company should (and shouldn’t) take when addressing harassment at work.

“Doing What’s Right – Not Just What’s Legal”