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Whoa! Never saw that one coming! You’re not responsible for aberrant crime

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in Discrimination and Harassment,Human Resources

Unless it’s obvious that an em­­ployer acted maliciously by purposely setting out to harm an employee, chances are it won’t be held responsible for the consequences of a co-worker’s crime.

After all, some criminal behavior just isn’t predictable. Courts only expect employers to follow the law when it comes to protecting employees from harm.

Recent case: Michelle, who is black, was an adjunct instructor for Suffolk County Community College. She worked there for many years while she earned several advanced degrees, including a doctoral degree.

Over the years, Michelle had complained that college administrators routinely referred to black employees as “you people” and made offensive comments about black women. She also claimed her supervisor questioned how she could have earned a doctorate in three years. This, she claimed, was evidence of a racially hostile work environment.

When a full-time position opened up in her field of expertise, Michelle applied right away. The position required a master’s degree but the job description said a doctorate was preferred. Michelle had the doctorate and was among five candidates originally deemed minimally qualified.

The selection committee narrowed the interview list to just two candidates, including Michelle and a white man who was a few months short of earning his doctorate degree.

The committee put Michelle on the interview list with reservations because her cover letter was peppered with serious grammar and syntax errors. In fact, several sentences were so jumbled that the committee couldn’t understand what she was trying to say.

After interviewing both candidates, the committee chose the white man, based largely on his specific experience. This upset Michelle so much she believed she was having a heart attack.

Now the story gets even more dramatic. Shortly after, Michelle and her husband were involved in a domestic incident. Her husband was evicted, and Michelle got a protective order against him.

Meanwhile, the college hired the husband for an open position.

Michelle presented the college with a revised protective order, which re­­­­quired her husband to stay away from her even at work. The college terminated the husband to comply with the order. That made him so angry that he went to their home—and shot Michelle 10 times.

She survived. Then she sued, alleging discrimination in hiring as well as retaliation.

She claimed that when she complained about not being selected for the job, the college retaliated by hiring her abusive husband and then fired him, causing his violent attack.

The court first dismissed Michelle’s bias claims. It said her error-ridden cover letter helped distinguish the two candidates and was a legitimate reason to prefer the white man. It said comments about “you people” and black women weren’t frequent or severe enough to constitute racial harassment.

Then it dispensed with Michelle’s retaliation claim. It ruled that the hiring of Michelle’s husband had nothing to do with her complaints. It didn’t see any way the college could have predicted the ex-husband’s attack, nor could it identify any way for the college to comply with the protective order other than the way it did—by firing Michelle’s husband. (Cummings-Fowler v. Suffolk County Community College, et al., No. 09-CV-3593, ED NY, 2013)

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