Can an employer’s perceived preferential treatment of an alleged rapist create a hostile work environment for the female employee who reported the rape? The Ninth Circuit Court of Appeals recently held that a jury should determine the answer to that question. Fuller v. Idaho Department of Corrections, No. 14-36110 (July 31, 2017).

Background

On August 22, 2011, Cynthia Fuller, an employee of the Idaho Department of Corrections (IDOC) was raped outside the workplace by a coworker, Herbt Cruz. Prior to the assault against Fuller by Cruz, IDOC had placed Cruz—whose workplace conduct had been the subject of prior complaints by three other female coworkers, but who had received no discipline for those incidents—on administrative leave because he was under criminal investigation for a prior rape reported in July 2011.

IDOC’s deputy chief directed IDOC’s district manager to maintain contact with Cruz while he was out on that leave, to keep Cruz informed about the ongoing rape investigation and to “make sure he’s doing okay in terms of still being our employee.” In addition, IDOC management told its employees that the agency “looked forward” to Cruz’s “prompt return” to work.

On September 6, 2011, when Fuller reported the rape by Cruz, she was told that Cruz “had a history of this kind of behavior.” But on September 7, one day after Fuller’s rape report and the day on which she obtained a civil protective order against Cruz, an IDOC supervisor sent an email to all IDOC employees, including Fuller, telling them to “feel free” to contact Cruz and “give him some encouragement, etc.” because Cruz was “rather down, as to be expected.”

Subsequently, Fuller requested paid leave under IDOC’s policy. That policy—under which Cruz was being paid—allows the director to grant paid administrative leave in an “unusual situation, emergency, or critical incident.” Fuller also requested “guidance” from the IDOC regarding any assistance to which she might have been entitled “as a victim.”

Fuller’s requests were denied, and Fuller was advised to use vacation and sick time for any needed time off. Fuller then applied for and was granted unpaid leave under the Family and Medical Leave Act. During Fuller’s leave, employees were told that she was absent for illness, but nothing further, which led staff members to assume she was “faking being sick.”

Although Fuller had obtained a civil protective order against Cruz, IDOC refused to prohibit Cruz from coming to the premises. Instead, Fuller was told that “Cruz is still our employee [a]nd we have to be conscious of his rights.” Further, IDOC’s management did not disclose the basis of Cruz’s leave to employees because they didn’t want to have a “stigma hanging over [him].”

Fuller resigned and ultimately sued IDOC, including a hostile work environment claim under Title VII of the Civil Rights Act of 1964. Her claims were dismissed by a federal district court, and she appealed the hostile work environment claim. The Ninth Circuit vacated the dismissal and remanded the claim for trial, awarding the costs of the appeal to Fuller.

Key Takeaways

Let’s review the steps taken by (and inactions on the part of) IDOC that led to the Ninth Circuit’s decision, including:

• IDOC’s prior failure to discipline Cruz for inappropriate workplace behavior;

• IDOC’s proactivity to “make sure [Cruz was] doing okay” during the criminal rape investigation;

• IDOC’s announcement to its employees that it “looked forward” to Cruz’s prompt return from that investigation;

• IDOC’s suggestion that employees provide “encouragement” to Cruz during his leave;

• IDOC’s rejection of Fuller’s request for paid leave, although Cruz had received paid leave; and

• IDOC’s failure to provide victim assistance and information to Fuller.

Even if each of these, standing alone, had a legitimate explanation, when taken together as a course of action, they could support Fuller’s perception that statements of concern for Cruz’s well-being—all made by IDOC managers –were based on a belief by those managers that Fuller was lying or that Cruz’s reputation was more important to them than Fuller’s safety.

According to the Ninth Circuit, such actions and statements could make it more difficult for Fuller to do her job, take pride in her work, or to desire to stay in her work position, all of which could create a hostile work environment under Title VII. Based on that rationale, the court remanded the matter to allow a jury to decide whether a violation of Title VII existed.

Here, an employer’s reaction to an employee’s (Cruz’s) non-work-related criminal conduct may lead to liability for a hostile workplace. It has become important for employers to realize that outside activities—and employers’ reactions to them—may create an unexpected basis of legal liability. Careful analysis of those circumstances, with the assistance of HR and legal when necessary, can help to avoid the risk of such liability.