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You must try to prevent co-worker harassment–but you’re not expected to be clairvoyant

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Management Training

When a supervisor does the harassing, it’s usually a slam-dunk win for employees who sue. That’s not necessarily the case when the harasser is a co-worker.

With co-worker harassment, employers are responsible only if they already knew the harasser was trouble because other employees had already complained about harassment, or the harassed employee had previously complained that she felt uncomfortable or harassed.

Fortunately, employers don’t have to be clairvoyant. Past harassment may be a good predictor of future harassment unless there’s some intervention. But that doesn’t mean that any negative information about the potential harasser triggers a duty for the employer to prevent possible future harassment.

Recent case: Carolyn Blanchard worked for Pier 1 Imports. Her job included cleaning the restrooms at night when the store was closed.

Her male co-worker was a registered sex offender, having been convicted before he started working for Pier 1. When he applied he admitted he had a felony conviction, but wasn’t specific. No one at the company asked for details. Had they inquired, they would have discovered that the man had raped two women in or near restrooms.

Blanchard told her supervisor that the co-worker asked her out on dates and told others that he wanted to pursue a relationship with her.

Then one evening, while each was cleaning a restroom and the only other person in the store was not nearby, the co-worker stripped off his clothes and entered the restroom where Blanchard was working. He then allegedly tried to rape her. Blanchard escaped and he was arrested.

Blanchard sued Pier 1, alleging it should have known the co-worker would sexually harass her.

The court didn’t see it that way, and refused to interpret the California Fair Employment and Housing Act (FEHA) as a general negligence statute. It said that employers are liable for co-worker sexual harassment only if they have enough information to conclude the co-worker might engage in sexual harassment. Merely knowing the co-worker had a criminal conviction wasn’t enough.

The court reasserted that employers must take reasonable steps to stop harassment once they know it is occurring and prevent harassment through training and education. But asking someone out on a date isn’t enough to trigger liability, nor is mere knowledge that an employee has a criminal record. (Blanchard v. Pier 1 Imports, No. 126243, Court of Appeal of California, 1st Appellate District, 2010)

Final note: Blanchard didn’t claim that Pier 1 negligently hired the co-worker with the rape conviction. Had she done so, the result might have been different—if she could show that the company breached its duty to protect employees from dangerous individuals.

Check with your attorney to see whether routine criminal record checks are a good idea for your organization. You may also want to ask if you should routinely check registered sex-offender databases.

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