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Don’t take the rap for harassment after hours

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in Discrimination and Harassment

Courts are beginning to realize that there is only so much an employer can do to prevent sexual harassment. Take, for example, off-duty and off-premises sexual harassment.

While employers probably are 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.

Recent case: Kaitlin Krause worked for Merrill Lynch as a senior specialist at the emerging markets desk. One evening, she and several co-workers decided to gather at a nearby bar after work. The happy hour event wasn’t a company-sponsored party, nor did the company pay for any refreshments.

One of the co-workers was a director at another trading desk, but he was not Krause’s supervisor. After leaving the pub, he and Krause had more drinks at another bar and then went to her apartment. There, Krause alleged, he raped her.

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

Krause quit. Then she sued for sexual harassment, claiming that the co-worker had kissed her on a previous occasion, also after work.

But 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 Krause from the co-worker under the circumstances, since it had no prior knowledge of any problems.

She had never used the em­ployer’s sexual harassment com­plaint process before the assault and therefore hadn’t put her em­­­ployer on notice that anything might be amiss. (Krause v. Merrill Lynch, et al., No. 10-Civ-2603, SD NY, 2011)

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