From recent memory, I can’t recall a case with more egregious allegations of sexual harassment.
One of the plaintiffs in this Fifth Circuit decision I read last night alleged that soon after a staffing company placed her with a new employer, a female supervisor began sexually harassing her, culminating with sexual assault.
It started with lunches. Her supervisor would attempt to touch the plaintiff’s leg and hold her hand. Lunch soon became dinner, and at one meal, her supervisor pinned the plaintiff, kissed her against her will, and threatened to get the plaintiff fired if she reported it. The plaintiff never reported this incident to the employer or the staffing company.
About a week later, the two went to lunch. The plaintiff excused herself to go to the bathroom. When she returned, the plaintiff finished her drink, and she blacked out. When she came to, her supervisor told her that she had raped the plaintiff with a sex toy and taken pictures. Her supervisor warned the plaintiff that if she told anyone about the rape, her supervisor would circulate the pictures of her and threatened the plaintiff’s daughter. Again, the plaintiff did not complain.
The harassment continued with touching, kissing, and blackmailed dates under threat of releasing pornographic pictures of the plaintiff. When the plaintiff finally mustered up the courage to tell another manager about the rape and subsequent blackmail, the manager told the plaintiff that she could lose her job if she complained to HR.
Later the harassing supervisor learned that the plaintiff might be pregnant and demanded that she get a pregnancy test. Her supervisor told the plaintiff that if she was pregnant, she would beat the unborn child out of her.
Things did not improve. Her supervisor verbally abused the plaintiff, calling her a whore and throwing things at her at work. When the other manager denied the plaintiff’s transfer request, she resigned.
After the resignation, the plaintiff notified the staffing company and the reason for it. The staffing company, hearing the horrific details for the first time, forwarded a copy of the plaintiff’s sexual harassment complaint to the employer, which investigated and, shockingly, concluded that the plaintiff and her supervisor had a consensual relationship.
The plaintiff sued both the employer and the staffing company for violations of Title VII. The employer settled.
The staffing company filed for summary judgment and prevailed.
But how?
Both the lower court and the Fifth Circuit concluded that the staffing company didn’t participate in the abuse or actually know that the plaintiff was experiencing discrimination because neither the plaintiff nor anyone else said anything until after she resigned.
So the plaintiff would have to prove that the staffing company should have known what was happening by exercising reasonable care. She couldn’t meet that burden.
The staffing company had an anti-harassment policy, and it acted after it learned of the issue. Complaining earlier would not have been futile. While the staffing company was aware of sexual harassment allegations involving the same supervisor and another recent placement there, they were investigated and unsubstantiated. So, it had no reason to assume that anyone else had been victimized.
Without actual or constructive knowledge of the sexual harassment, the allegations against the staffing company failed.