PRIOR COMPLAINT SINKS EMPLOYER'S HARASSMENT DEFENSE

A very recent decision by the federal court for the District of Connecticut highlights the risks employers take when they retain an employee after receiving complaints of harassment. (MacCluskey v. University of Connecticut Health Centers (3:13-cv-1408 2/21/17)).  The plaintiff in that case was a dental assistant.  She claimed that a dentist employed by the defendant had sexually harassed her and that the employer failed to take appropriate action to protect her.  A jury agreed and awarded her $200,000 in damages.

Upon review of the jury’s verdict, the judge ruled that there was evidence that the employer had been negligent and was liable for the actions of the dentist.  Evidence of the employer’s negligence cited by the Court included the fact that ten years earlier, another dental assistant complained of the dentist sending her gifts and notes that included “middle school crush” messages, such as “You’re beautiful,” and “I love your smile.”  The employer had dealt with those complaints by mandating that the dentist sign a “Last Chance Agreement” – basically a final warning with the threat of immediate termination if there were future incidents.

A decade later, when the plaintiff was hired, the dentist allegedly engaged in the same sort of behavior.  The behavior escalated and he began to stare at the plaintiff for long periods of time and also attempted to put his hand up her shirt.  At that point she complained and the dentist’s employment ended. 

For the employer, the case appeared winnable – upon receiving the plaintiff’s complaint it took prompt action and fired the dentist.  Unfortunately for the employer, the prior complaints proved its undoing.  The court concluded that it had an ongoing duty to monitor the dentist’s behavior including special harassment training as well as notifying his current supervisors of the dentist’s past bad behavior.  In short, the employer had an affirmative obligation to closely supervise and monitor the dentist.  Because it had not taken those steps, the jury had sufficient evidence to impose liability on the employer even though it had fired the dentist when it learned of the plaintiff’s complaint.

For employers, the lesson from the decision is that continuing to employ individuals after a finding of harassment poses a risk and that risk may not diminish over time.  If there is a second complaint of harassment, the employer’s actions in retaining the alleged harasser will likely come back to haunt it and may result in a finding of liability.

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SEARCH OF EMPLOYEE'S BACKPACK GIVES RISE TO INVASION OF
PRIVACY CLAIM

A federal court in the District of Nevada ruled that a terminated employee’s claim of invasion of privacy should go to trial. (Magadalugo v. MGM Grand Hotel, LLC (2:14-CV-01806, March 3, 2017)).  The plaintiff, a dealer at MGM, a Las Vegas casino, claimed that he was subjected to ongoing surveillance by his employer because MGM wrongly suspected him of theft. 

One of the claims he asserted was that a MGM employee had removed his personal backpack from the employee break room and placed it outside the door so that another employee could search it.  The plaintiff further claimed that its contents were rifled through when he found it.  This type of incident had, according to the plaintiff, occurred on multiple occasions. 

The test for invasion of privacy includes whether the actions complained of “would be highly offensive to a reasonable person” and involve an “intentional intrusion.”  The Court ruled that the plaintiff’s claims, if proven, could serve as the basis of a viable claim.  The Court reasoned that if the jury believed the plaintiff’s claims of multiple searches orchestrated by the employer, his claims could be viable.

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Employment Law Overview

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