Sexual Assault Was Not Sexual Harassment

By Andy Volin

A security guard and her husband thought she had claims for harassment and retaliation after she was sexually assaulted (unwanted kissing and groping) at work by an employee of a customer, but the First Circuit recently upheld the dismissal of her claims on summary judgment. The harassment claim failed because the employer had a strong anti-harassment policy in place, and the alleged victim never reported that the customer’s employee was sexually harassing her before the assault occurred. Instead, she had only complained about a couple of phone calls that bothered her. That was not enough to put her employer on notice that the customer’s employee was sexually harassing her. After she reported the assault, the customer’s employee was immediately moved to a different city, ending any potential for further harassment.

Her retaliation claim failed as well. She claimed her employer reduced her hours after she reported the assault, but work records showed that wasn’t the case. She also complained that a person conducting sexual harassment training singled her out for humiliating questions at a training session, but that person did not know about her sexual assault, and so the questions could not be considered retaliation for reporting it. Medina-Rivera v. MVM, Inc., No. 11-2419 (1st Cir. Apr. 10, 2013).

The case is a good reminder that employers must have robust anti-harassment policies in place, and those policies must address harassment both by co-workers and by outsiders who have access to employees as a result of their jobs.

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