Do Employers Need a Crystal Ball?

January 1, 2007

In a case described as a “close call” involving “unusual facts”, the Seventh Circuit Court of Appeals recently upheld a jury verdict holding an employer liable under Title VII based on an employee’s report of a threat of potential sexual harassment by a non-employee prisoner.

Georgia Erickson worked as a payroll and benefits specialist at the Wisconsin Correctional Center System (WCCS), a division of the Wisconsin Department of Corrections (WDC). Erickson first began work with the WDC in 1996. She worked at the WCCS between July and December 2001. The Oregon Correctional Center (OCC), a minimum security prison under the authority of the WDC, is located in the same building as the WCCS. The OCC houses male inmates and is located across the hall from the WCCS offices.

Erickson worked long hours at WCCS. Her supervisor authorized her to work in the WCCS offices after 4:30 p.m. and she often did. The doors to the WCCS offices were typically locked at 4:30 p.m. The WCCS offices were off limits to OCC inmates except those few inmates who had specific authority to be there, such as being assigned work duty there. Jonathon Spicer was assigned to do janitorial work at the WCCS offices.

Because inmates assigned work duty at the WCCS had contact with nonsecurity employees of WCCS, the OCC reviewed an inmate’s file before assigning them work to determine if a particular inmate should get the job. Spicer’s file contained several pieces of negative information. Spicer has previously been put on work release as part of the OCC’s rehabilitation program. He lost his work release status when he was AWOL for 3 hours from an assigned workplace in February, 2001. Spicer was classified as a high-risk inmate as of December, 2001 and at least one social worker concluded that he could only be put back in a work release situation if he was closely monitored. Spicer was denied parole by the parole board in July 2001 because he was an “unreasonable risk to the community”. Despite his file, the OCC determined he was qualified for the janitor position at the WCCS offices. Spicer worked in the position for about 7 weeks until his job ended on December 28, 2001.

The OCC did not have any specific policy prohibiting inmate janitors from being in the WCCS offices after 4:30 p.m. Nevertheless, it was very unusual to see an inmate in the offices after hours. Erickson did not recall seeing any inmate in or near her workstation after hours before Spicer appeared there on December 20, 2001.

On the evening of December 20, Erickson was at her cubicle in the WCCS offices finishing up her work for the day. Her supervisors had invited her to a party after work at a local bar, Hack’s. Some time between 4:45 p.m. and 5:15 p.m. Erickson, who thought she was alone in the office, turned around to find Spicer fiddling with a vacuum and looking back and forth between her and the vacuum in a way that made Erickson feel uncomfortable. Erickson felt very “freaked out” and scared, like Spicer was stalking her. Erickson recalled training sponsored by the WDC that she had completed in 1997 regarding interactions between inmates and nonsecurity employees. The 3-day training stressed that male inmates often fantasized about female employees and that employees should not be too friendly with inmates at the facility.

Erickson immediately got out of her chair and told Spicer that she had to leave to meet some friends. She left her desk in disarray, pointed Spicer out the door, locked the door and left. Erickson went directly to Hack’s. She joined up with the group there, which included Todd Johnson, the OCC Assistant Superintendent who had authority to place or remove inmates from work assignments; Margaret Thompson, the WCCS warden who had primary responsibility for preventing sexual harassment at WCCS; Andrea Bambrough, Director of Human Resources at WCCS and Erickson’s supervisor; Wayne Mixdorf, a Sector Chief; and Cindy Schoenike, another Sector Chief.

Immediately upon arriving at Hack’s she told the group assembled there what had happened with Spicer. She repeated that she was scared and really freaked out by the incident. According to Erickson, upon hearing her story the group seemed surprised and their “mouths kind of dropped”. Warden Thompson told Erickson that she was “so sorry” and that “they would make sure that nothing like this ever happened again”. Erickson left the bar shortly after the discussion.

Erickson did not return to work until December 27. On December 28, Spicer appeared in her office again after hours. Erickson was alone. Spicer attacked and brutally raped Erickson and then escaped from the OCC in Erickson’s car.

No one present at Hack’s on the evening of December 20 had taken any action regarding Spicer in the week between December 20 and December 28. Assistant Superintendent Johnson admitted that had he remembered what Erickson had said on December 20 he would have done something about Spicer before December 28. Johnson had previously taken action in a similar situation, removing an inmate from his position when Johnson received a complaint from a female employee about a different inmate being too friendly. But Johnson didn’t remember the discussion on December 20 and did nothing.

Erickson sued the WDC in federal court under Title VII’s hostile work environment doctrine. She alleged that the WDC discriminated against her on the basis of sex by failing to prevent the sexual assault by Spicer. The jury decided that the WDC was liable as Erickson’s employer. The WDC appealed the jury’s decision to the Seventh Circuit Court of Appeals.

Negligence or Strict Liability Standard?
To establish that a hostile work environment exists under Title VII an employee must present evidence to prove that: 1) the employee was subjected to unwelcome sexual conduct, advances or requests; 2) the employee was subjected to the conduct because of her sex; 3) the conduct was severe or pervasive enough to create a hostile work environment; and 4) there is a basis for employer liability. The WDC did not dispute that Erickson had proved the first three requirements. The WDC argued only that no reasonable jury could have found a basis for employer liability.

The court explained that an employer’s liability under Title VII is determined by the status of the harasser and the type of injury caused by the harassment. If the harasser is a supervisor the employer is automatically liable (strict liability) and if the harasser is a coworker the employer is liable if it knew or should have known of the conduct and failed to take action to stop or otherwise avoid the conduct (negligence). In terms of injury, the court explained that the greater the potential injury to the employee the greater care the employer must take.

The court went on to determine that it was appropriate to evaluate this case under the negligence standard. According to case law relied on by the court, even though Spicer was not a coworker of Erickson for purposes of hostile work environment liability based on negligence it doesn’t matter whether the harasser is an employee, an independent contractor or even a customer. What does matter is how the employer handles the problem. The court noted that it can be easier for employers who run residential enterprises, like the WDC, to use their “arsenal of incentives and sanctions” with their residents in order to avoid the creation of a hostile work environment.

Negligence And Avoiding Harm
With this background the court identified the question it needed to answer – whether a reasonable jury could have found that the WDC was negligent in addressing the risk that Spicer might sexually harass Erickson. The court ultimately answered yes.

The WDC argued that employer liability can only arise if an employer has notice of actual prior acts of sexual harassment. In other words, Erickson would have had to notify the WDC of past, unreported sexual harassment in order to trigger its obligation to prevent future harassment.

The court rejected the argument, noting that the primary objective under Title VII is to avoid harm not to remedy harm that has already occurred. The court advised that employers must take all steps necessary to prevent sexual harassment from occurring, including taking reasonable steps to prevent harassment once informed of a reasonable probability that it will occur. The court further cautioned that the greater the potential harm to the employee the more vigilant the employer needs to be.

The court instructed that an employer who receives notice that some probability of sexual harassment exists must adequately respond to that information within a reasonable amount of time. Sources of information used in determining the risk of sexual harassment can include information received directly from the employee and the employer’s knowledge of the specific context of its own working environment. The court noted that in certain circumstances an employee’s effort to bring a threat of potential harassment to an employer’s attention can be enough to give rise to liability.

Negligence Was Proven
Applying these guidelines to the specific facts of Erickson’s case, the court concluded that a reasonable jury could have decided that after Erickson’s discussion with her supervisors on December 20 the WDC had enough information to make a reasonable employer think that there was some probability that Erickson was being sexually harassed. Yet, the WDC supervisors took no remedial action as they were obligated to under Title VII.

In evaluating the WDC’s failure to prevent the later act of harassment against Erickson on December 28, the court took into account the nature of the threat that she relayed to her supervisors on the evening of December 20. The court recounted that Erickson’s fear was based on encountering a male inmate, alone and after hours, who stared at her in a way that made her feel uncomfortable. Erickson had never been along with an inmate; her job description didn’t require that she deal personally with men in custody or be alone with them after hours in her office. Spicer’s actions “freaked her out”. When Erickson told her supervisors about the encounter they exhibited signs of concern – the “mouths dropped” and they told Erickson they were “so sorry” and that “nothing like this would ever happen again”. Assistant Superintendent Johnson admitted that if he had remembered his conversation with Erickson on December 20 he would have done something about the situation, just as he had done when he received an earlier complaint about an inmate janitor.

In addition, the court took into account the information that Erickson’s supervisors had about the workplace environment at WCCS. For instance, the WDC supervisors knew that most of the office employees at WCCS were female and that all of the inmates at OCC were male. Erickson’s supervisors also knew that there was an increased risk that male inmates might sexually harass female employees. The WDC had implemented training emphasizing that male inmates might fantasize about and attempt to establish inappropriate relationships with female employees. Supervisors also knew that unusual attention paid by an inmate to a female employee might suggest that the inmate posed a threat. They knew that Spicer had previously been classified as a high-risk inmate in the opinion of at least one social worker.

The court looked at the totality of these circumstances, noting that the totality was crucial in evaluating the reasonableness of the WDC’s knowledge as well as its actions. The court was careful to note that the WDC was not being held strictly liable concerning the behavior of its inmates. Likewise, the court was not suggesting that a prison is liable whenever one of its prisoners sexually harasses an employee. It explained that if the WDC had no evidence of “some probability” that sexual harassment was occurring it would not have been held liable.

In closing, the court emphasized that the WDC did not take any action in response to Erickson’s complaint. Despite Assistant Superintendent Thompson’s promise on the evening of December 20 that the encounter would not be repeated, the WDC did nothing between December 20 and the date of the assault on December 28. The supervisors did not ask any follow-up questions of Erickson or her co-workers, either at the bar or at the workplace. They did not question Spicer. They did not remove him from the janitor position. The court suggested that even the slightest action would have prevented what the court characterized as a “clearly preventable” first-degree sexual assault. Instead, the WDC has failed to respond to a reasonable notice, under the circumstances, that a sexual harassment might occur. Based on the WDC’s failure to take any action, the court decided that a reasonable jury could conclude that its lack of response was unreasonable and that it violated Title VII’s hostile work environment doctrine. Erickson v. Wisconsin Department of Corrections, Case No. 04-C-265-C (Nov. 14, 2006).

Bottom Line
This case involves facts and circumstances that are not common to the majority of employers and their workplaces. Nevertheless, it points out just how much a jury or a court might expect of an employer in terms of its vigilance to prevent and correct sexual harassment that may be or might have “some probability” of occurring in its workplace. It reminds us that, as employers, we have an obligation to our employees to provide a workplace free of harassment that extends to protecting them from the conduct of not only supervisors and co-workers but also vendors, customers and other persons who may be in the workplace.

As the new year begins it is a good time to take stock of how your workplace measures up in terms of its obligation to prevent and correct harassment. Be proactive!

  • Review, update and redistribute your workplace harassment policy, making sure to have employees sign an acknowledgment that they have received, reviewed and understand the policy
  • Conduct refresher training for all employees, from the rank-and-file employees to the CEO. Emphasize the importance of reporting conduct. Make sure employees know how to use the reporting system and make sure supervisors know what to do once they receive a report
  • Conduct prompt and thorough investigations of all reports. Create and maintain documentation that demonstrates follow-up action taken once a report is received and corrective action taken if it is determined that inappropriate conduct or harassment has occurred

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Leslie Sammon
Leslie Sammon