Suppose an employee complains that a co-worker sexually harassed her while traveling on business during off-duty hours. Can you be held liable for the alleged misconduct? In a recent case, a federal appeals court ruled that an employee who was allegedly raped by a co-worker in a Rome hotel could sue her employer. We”ll tell you why.
Airline Crew Stays At Hotel
Penny Ferris, a New York-based flight attendant for Delta Air Lines, worked on a flight to Rome. The airline paid for the crew to stay overnight at a Rome hotel until the return trip the next day and arranged for transportation to and from the hotel. At the hotel, a male co-worker invited Ferris to his room to sample a bottle of wine. Ferris said she took a few sips of wine and immediately felt faint. She tried to leave the room but blacked out and later claimed the co-worker repeatedly raped her while she lapsed in and out of consciousness.
400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.
Employee Reports Rape
Ferris reported the alleged rape to Delta supervisors. Ferris later learned that two other Delta flight attendants had previously reported being raped by the same Delta employee and a third co-worker complained of his sexually hostile conduct. But, Ferris claimed, Delta did nothing in response to those complaints. What’s more, she charged that a Delta supervisor took steps to prevent another employee from filing a formal charge or warning co-workers about the alleged rapist, who eventually resigned.Ferris sued Delta for sex harassment. Delta argued it wasn’t liable for an off-duty incident in a hotel. The trial court agreed with Delta, finding the alleged attack didn’t occur in the work environment. Ferris appealed.
Court Takes Expansive View Of Work Environment
The federal Second Circuit Court of Appeals gave Ferris the go-ahead to proceed with her case, ruling that a jury could find the alleged rape occurred in the work environment.1 The court noted that although the flight crew didn’t have to stay in that particular hotel, it was encouraged to because the employer reserved and paid for the rooms. And it was unrealistic to believe that the flight personnel wouldn’t associate with one another during the layover—they were in a foreign country and knew no one else there. Although Delta didn’t tell the employees how to spend their off-duty hours, the court pointed out that the circumstances of the situation encouraged the employees to spend off-duty time together. The court also concluded that a jury could find Delta responsible for Ferris” alleged rape because it didn’t take steps to protect employees after the earlier complaints. The court rejected Delta’s contention that it had neither the authority nor the practical ability to investigate the previous complaints of sexual improprieties that involved off-duty encounters. The egregious nature of the complaints presented a serious threat to employees, the court noted, and therefore Delta had a duty to take reasonable steps to protect co-workers.
Beware Of On-The-Road Harassment
As this case illustrates, banning sexual harassment on work premises may not be enough. You need to go a step further and ban such behavior in all work-related situations and environments. This is particularly important in light of the court’s ruling that employers may be liable for an employee’s off-duty harassment of a co-worker if the employees can reasonably be expected to spend time together during non-work hours, such as while traveling on business. Take these steps to protect yourself:
- Ban harassment regardless of location. Make sure your anti-harassment policy effectively communicates your zero-tolerance stance on sexual harassment, regardless of where or when it occurs. Be sure it addresses employee behavior at business social functions and while workers are traveling on business.
- Take complaints seriously. Promptly investigate all sex harassment complaints and take appropriate steps to prevent harassment from recurring. Otherwise, you could be on the hook for hefty damages if the harasser strikes again.
- Implement a flexible complaint process. Your complaint-reporting process should make it easy for employees to notify you about problems immediately, even if they”re away from the workplace.