In the case Kramer vs. Wasatch County, in Utah, it is much more than a sexual harassment case, says employment attorney Paul Mollica, of Outten and Golden in Chicago, Illinois. Kramer, the employee and plaintiff in the case, claims she was sexually assaulted by a Sergeant, who also happened to be her manager in the office, who gave her job assignments, evaluated her performance and otherwise had day to day control over her work.
The difference between this and other kinds of employers, says Mollica, is that the Commanding Officer, the Sergeant, is the one who makes the decisions about hiring and firing. In this case, where the employee was severely harassed by this Sergeant and intimidated by him, she decided to not say anything until she was injured in a car accident and subsequently asked some colleagues to report her complaints to Human Resources. The Sheriff's Office then began to investigate the serious allegations.
Unfortunately, the investigation took a bad turn in that instaed of focusing on the allegations against the Sergeant, they investiaged a supposed extra-martial affair the complaining employee had with another colleague. Instead of an effort to correct and prevent harassment, they targeted the employee for disciplinary action for violating work rules, says Mollica. The Sheriff's Office said she didn't complain about it until long after most of the harassment had occurred and that they weren't responsible for the harassment they didn't know about.
The 10th Circuit held that the County would be responsible for the employee's harassment because even though the Sheriff wasn't the direct supervisor of the employee, his conduct could still be related back to the Sheriff's Office because he exercised control over the employee in important ways. The Court also made the point that the County made it appear as if the Sergeant had that kind of hiring and firing authority over the employee.
The reason Mollica usually stresses with employee that they should report harassment is that generally, it's the only way things are going to change in the workplace when it involves supervisors. Mollica says this case reminds us that an employee doesn't have to prove anything about their negligence or failure to report unless the employer had a policy in place that could correct and prevent harassment and it was reasonable or unreasonable for the employee to use it. In this case, not only was the employee very severely threatened by the Sergeant, but also there was evidence the Sergeant had a comfortable relationship with the individuals investigating the claim. Mollica says she tried to file other complaints in the past but was humiliated by the Commanding Officer in front of other employees.
Mollica says it helps to mention sexual harassment to other co-workers if the case goes to a trial, so the jury can hear that, but in the eyes of the law, Mollica says it's always better to report complaints through the channels the company provides, which is usually Human Resources. Mollica says that this case reflects that not every case is the ideal case.
Paul Mollica is an employment attorney with Outten and Golden in Chicago, Illinois. For more information on him, click here and for more information on this case that Mollica has written about, click here. He spoke with the Employment Law Channel, an affiliate of the Legal Broadcast Network, providing online, on-demand, legal video content. Both networks are part of Sequence Media Group.