Don’t take the rap for employee’s after-hours harassment

Courts are beginning to realize that there is only so much an employer can do to prevent sexual harassment.

Take, for example, alleged sexual harassment that occurs off-duty and off-premises.

While it’s likely that employers would be responsible for a supervisor’s sexual assault or harassment, chances are they won’t be held liable for the same conduct by a co-worker.

That’s all the more reason to make clear to supervisors that they carry liability risks—and the potential for company discipline—even when they’re off-site and off-duty.

Recent case: One evening, a female Merrill Lynch employee joined several co-workers after work at a New York bar. The happy hour gathering wasn’t a company-sponsored event, nor did the company pay for any food or drink.

One of the co-workers was a director, although he wasn’t the woman’s supervisor. After leaving the pub, the female employee and director had more drinks at another bar and then went to her apartment. There, she alleged, he raped her.

She filed criminal charges. Merrill Lynch suspended the man and he was fired after he pleaded guilty to coercion.

The female employee quit. She then sued for sexual harassment, claiming the director had kissed her on a previous occasion, also after work.

Result: The court rejected her lawsuit. It reasoned that she had not been assaulted by a supervisor, but by a co-worker. It also noted that the after-hours activities at the initial bar were not company-sponsored and that the employer had no obligation to protect her from the co-worker since it had no prior knowledge of any problems.

The woman had never used the company’s sexual harassment complaint process before the assault and, therefore, never put her employer on notice that anything might be amiss. (Krause v. Merrill Lynch, et al., No. 10-Civ-2603, SD NY, 2011)

Can one act constitute a hostile environment?

It could. The standard for evaluating a hostile work environment claim is whether the harassing behavior at work is sufficiently “severe” or “pervasive” to alter the victim’s employment and create an abusive working environment.

Under extreme circumstances, such as rape or physical assault, one incident may be sufficient to constitute a hostile environment.  The more severe the harassment, the less there is the need to show a repetitive, or pervasive series of incidents.