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Female Bailiff Alleging Rape by Manager May Pursue Title VII Claim Against County

By Roger G. Trim and Heidi K. Wilbur  3/27/2014
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An employee who alleged she was sexually harassed and raped by her manager has a triable claim for sexual harassment under Title VII of the 1964 Civil Rights Act even though she didn’t formally complain to her employer, the 10th U.S. Circuit Court of Appeals ruled. The court reversed summary judgment in favor of the employer because of factual issues related to the reasonableness of the employer’s response to the harassment allegations. 

A bailiff for the Wasatch County Sheriff’s Office, alleged she was subjected to repeated harassment and sexual assault by her supervisor, Sgt. Rick Benson. She asserted that the harassment began when Benson repeatedly demanded that she rub his feet, which she refused to do until his demands became “intimidating and kind of scary.”  

Subsequently, Benson sexually assaulted the bailiff twice during training assignments in his patrol car and warned her not to “act weird” afterward. He then raped her in a closet while she was cleaning his house. Afterward, Benson threatened that if she did not stay quiet, it would be a “career ender.” Another assault occurred when the bailiff capitulated to Benson’s demand that she bring him a soft drink while he was recovering from surgery. 

She explained that she did not complain to the sheriff about any of the assaults because she was afraid Benson would demote her. The sergeant controlled her schedule and daily assignments, wrote her performance evaluations, and could make recommendations affecting her employment status. She also believed that complaining would be ineffective based on an allegedly insufficient response to a previous complaint she had made about sexually offensive conduct by her male co-workers. 

Eventually, the bailiff confided in several colleagues about the sexual assaults. She also admitted she had been having a consensual affair with another man, by whom she was pregnant. The sheriff found out about the assaults and the pregnancy and launched an investigation into possible “sexual misconduct” between Benson and the bailiff. The assigned investigator, a close friend of the sergeant’s, was not trained in sexual harassment investigations and focused almost entirely on determining the paternity of the baby. After the investigation, the bailiff was disciplined for having consensual sex with another county employee while he was on duty, and she was encouraged to resign. The sheriff’s only response to the sexual assault allegations was to turn the investigation over to state detectives. Benson was never prosecuted and resigned before he could be terminated.

The bailiff filed a Title VII sexual harassment claim against the county. The court awarded summary judgment to the county, in part on the grounds that the county was entitled to prevail on its Faragher/Ellerth affirmative defense as a matter of law because the sheriff promptly responded to the harassment after becoming aware of it and because the bailiff failed to report the harassment in a timely manner.

On appeal, the 10th Circuit reinstated her Title VII claim, holding that a jury should decide whether the county could prevail on its Faragher/Ellerth affirmative defense. The court explained that the county’s prompt response did not establish that it had exercised reasonable care, emphasizing that “not just any response to sexual harassment establishes reasonable efforts to comply with Title VII.” The court chided the county for failing to consult human resources, not following county policy for investigating harassment, focusing on the bailiff’s unrelated misconduct and assigning the investigation to a potentially biased detective who lacked experience in sexual harassment allegations. 

The court also held that factual questions remained as to whether the bailiff’s failure to complain was unreasonable in light of the threats from Benson, his job-related power over her and her lack of confidence in the county’s prior efforts to remediate harassment.   

Kramer v. Wasatch County Sheriff’s Office, 10th Cir., No. 12-4058 (Feb. 25, 2014).

Professional Pointer: Employers should ensure that harassment allegations are taken seriously and are thoroughly investigated by a neutral employee, in accordance with company policy. Employers should also be aware that the definition of a “supervisor” was recently broadened to include individuals who can recommend or substantially influence tangible employment actions, leading to increased exposure under Title VII.   

Roger G. Trim is a shareholder and Heidi K. Wilbur is an associate in the Denver office of Ogletree Deakins, an international labor and employment law firm representing management. 

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