Single Incident of Alleged Sexual Assault Supports Sexual Harassment / Hostile Work Environment Claim

In Thompson v. South Amboy Comprehensive Treatment Center, 2021 WL 3828833 (D.N.J. Aug. 27, 2021), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim.

Here, plaintiff alleges that her former supervisor (Edwin Rivera) sexually assaulted her during a weekend outing in Atlantic City, and that her former employer (defendant) did not properly prevent or remedy the hostile work environment the assault caused and retaliated against her for reporting it.

Defendant does not dispute that Rivera assaulted Thompson, but rather argues (among other things) that plaintiff did not suffer a hostile work environment because the assault took place out of the office, and Rivera was promptly terminated after it was reported, and that defendant cannot be held vicariously liable because Rivera’s conduct was outside the scope of his employment and defendant exercised due care in remedying the situation.

As to whether plaintiff suffered a hostile work environment based on this single incident, the court explained:

The New Jersey Supreme Court has recognized that, in “a rare and extreme case,” a “single incident” may be “so severe that it would, from the perspective of a reasonable woman, make the working environment hostile.” Lehmann, 626 A.2d at 455. If any single incident constitutes a rare and extreme case, it is when a supervisor rapes a subordinate. K.S. v. ABC Pro. Corp., 749 A.2d 425, 427 (N.J. Super. Ct. App. Div. 2000) (“Rape is surely the ultimate form of sexual harassment.”). Even though Thompson worked with Rivera for one day, there is evidence from which a jury could conclude that her one day in the office was a hostile environment for Thompson. Moreover, a reasonable jury could find that the assault forever permeated her experience at SACTC. As the New Jersey Supreme Court has said, “harassment by a supervisor that takes place outside of the workplace can be actionable,” and “[c]onduct that takes place outside of the workplace has a tendency to permeate the workplace.”

The court explained that defendant’s “other arguments concerning where the assault occurred, by whom it was committed, and the employer’s response to it are more appropriately relevant to the question of to what extent an employer may be held liable for the hostile work environment.”

Turning to the issue of vicarious liability, the court explained that there was no basis to conclude that Rivera acted within the scope of his employment when he assaulted plaintiff, noting that “patently, the rape of an employee committed by a supervisor outside the workplace is beyond the scope of the supervisor’s employment.”

However, held the court, defendant can be liable for compensatory damages if a reasonable jury could find that defendant was negligent or reckless. The court agreed with plaintiff’s argument that summary judgment was improper on this issue, since there were several genuine issues of material fact that require a jury’s determination.

Specifically:

An employer may be held vicariously liable for compensatory damages for supervisory sexual harassment that occurs outside the scope of the supervisor’s authority if the employer had actual or constructive notice of the harassment” and negligently or recklessly failed to discharge its duty to prevent or remedy the harassment. Lehmann, 626 A.2d at 464; see also Blakey, 751 A.2d at 543 (“[I]f the employer had notice that co-employees were engaged on such a work-related forum in a pattern of retaliatory harassment directed at a co-employee, the employer would have a duty to remedy that harassment.”). Indeed, “harassment by a supervisor that takes place outside of the workplace can be actionable,” because, as stated above, [c]onduct that takes place outside of the workplace has a tendency to permeate the workplace.” Blakey, 751 A.2d at 549. Thus, SACTC can be liable for compensatory damages if a reasonable jury could find that it (i) had actual or constructive notice of the harassment and (ii) failed to discharge its duty to prevent or remedy the harassment. [Citations omitted; cleaned up.]

The court held that there were genuine issues of material fact as to points (i) and (ii).

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