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Employment Law Blog
James Tarquin, P.A
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Court Finds Employer Can Be Held Liable For Sexual Harassment When Harassment Continues After Victim’s Complaint

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As explained by the U.S. Second Circuit Court of Appeals in Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004), employers are not “automatically liable” for sexual harassment by employees.  Rather, in the context of harassment by non-supervisory employees, an employer’s liability requires a showing that the employer knew or should have known about the harassment but failed to take prompt and effective remedial action to prevent the harassment from recurring.  As observed by the U.S. Ninth Circuit Court of Appeals in Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 875 (9th Cir. 2001), “[w]hen an employer undertakes no remedy, or where the remedy does not end the current harassment and deter future harassment, liability attaches for both the past harassment and any future harassment.”  The decision by the U.S. District Court for Connecticut in DelSasso v. 1249 Wine Bar, 2017 WL 1234110 (D. Conn. March 31, 2017) illustrates that an employer can be held liable for sexual harassment when the harassment continues after a complaint by the victim to management.

Employer Fails To Stop Harassment Of Victim

In that case, Claudia DelSasso (DelSasso) brought claims for sexual harassment and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (Title VII) against 1249 Wine Bar (Wine Bar).  DelSasso worked as a server at Wine Bar.  DelSasso alleged that she was sexually harassed employees who worked in the restaurant’s kitchen.  The alleged sexual harassment included making kissing gestures at her, calling her “mommy,” grabbing her buttocks, brushing up against her, grabbing her waist, stroking the back of her neck, touching her legs and hips, making sexual propositions, playing an audio on a cell phone of a woman moaning, and showing her a photograph a harasser’s genitals.  DelSasso testified that she complained on multiple occasions to management about the harassment, and was told that harassment would not be tolerated and the problem would be addressed immediately.  About one week after she asked a management-level employee to place a document in her personal file setting forth her sexual complaints, DelSasso was terminated. 

Wine Bar filed a motion with the trial court seeking dismissal of DelSasso’s sexual harassment and retaliation claims.  In doing so, Wine Bar asked the trial court to find that DelSasso’s claims failed as a matter of law and DelSasso was prohibited from presenting her case to a jury.  The trial court denied Wine Bar’s motion for dismissal and found that DelSasso’s case must decided by a jury.

In denying Wine Bar’s motion for dismissal of DelSasso’s sexual harassment claim, the trial court found that DelSasso was subjected to sexual harassment that was sufficiently severe or pervasive to alter the conditions of her employment and create a hostile work environment.  In finding that DelSasso endured sexual harassment sufficiently severe or pervasive to present her case to a jury, the trial court observed that “[d]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”  Because of the severity of such harassment, the trial court explained, courts have consistently held that dismissal of sexual harassment claims is not appropriate in cases involving “repeated touching of intimate body parts of an unconsenting employee’s body.”  Because DelSasso testified to “several incidents of unwanted touching,” including the touching of her buttocks, and to multiple instances of unwanted sexual advances, the trial court concluded that DelSasso’s sexual harassment claim crossed the “line between claims that should be dismissed” by the court as a matter of law and those that should proceed to a jury trial. 

In denying Wine Bar’s motion for dismissal of DelSasso’s sexual harassment claim, the trial court also found that DelSasso had presented sufficient evidence to hold Wine Bar liable for the sexual harassment.  Wine Bar argued that DelSasso could not establish liability for the harassment because management “promptly responded” to her complaints “in an adequate manner by confronting [the harassers] and discussing sexual harassment at a staff meeting.”  In rejecting this argument, the trial court determined that a jury could find that Wine Bar’s purported corrective measures were not reasonable or adequate because the harassment continued after DelSasso complained.  Under such circumstances, the trial court reasoned, “a jury would not be compelled to find that appropriate remedial action was taken.”     

In denying Wine Bar’s motion for dismissal of DelSasso’s retaliation claim, the trial court concluded that a jury could find that Wine Bar’s reasons for DelSasso’s termination were a pretext for retaliation.  The trial court pointed out that although Wine Bar alleged that DelSasso was fired because it needed to reduce the number of wait staff due to financial difficulties, Wine Bar hired 11 or 12 new employees in a five-month period following DelSasso’s discharge.  The trial court also observed that although DelSasso was fired for allegedly serving two entrees without charging for them, another employee who was suspected in connection with the missing food and money remained employed by Wine Bar.  The trial court also found that the evidence demonstrated a specific link between DelSasso’s complaints and termination because Wine Bar discharged her about one week after she provided Wine Bar with a letter documenting her sexual harassment complaints.  Based on the totality of the circumstances, the trial court reasoned, it was for a jury to decide whether DelSasso’s termination was motivated by retaliatory intent. 

Liability Attaches When Remedial Action Is Ineffectual

The decision in DelSasso establishes that the most important factor in evaluating whether an employer took prompt and effective remedial action after the victim lodged a sexual harassment complaint is whether the employer’s actions ended the harassment.  When the harassment continues after the victim’s complaint, the employer’s purported remedial acts, such as investigating the complaint, discussing sexual harassment at a staff meeting, or disciplining the harasser, will not necessary shield it from liability.  Rather, because evidence showing that the harassment continued after the victim complained demonstrates that the employer’s response was ineffectual, the continued harassment is a basis for imposing liability on the employer for the harassment.  As explained by the Florida Fifth District Court of Appeal in Speedway v. Superamerica, LLC v. Dupont, 933 So.2d 75 (Fla. 5th DCA 2006), “when an employer is aware of the sexual harassment and takes no remedial action or inadequate steps are taken to prevent recurrence of the harassment, then the employer can be held liable” for the sexual harassment.

Consultation With Employment Law Attorney   

We have extensive experience protecting and vindicating the rights of sexual harassment victims.  If you have been the victim of sexual harassment, or have questions about an employer’s response to a complaint of sexual harassment in the workplace, please contact our office for a free consultation.  We take sexual harassment on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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