Ninth Court Finds Favoring Co-Worker Accused of Rape Over Rape Victim Created Hostile Environment

This Ninth Circuit case addressed a typical “good ol’ boy” attitude at work: a male co-worker accused of anything – here rape of the Plaintiff co-worker – is treated with empathy and kindness.  The female co-worker, who made this very serious accusation, is simply not treated as well: no support; no kindness; no concern.

In Fuller v. Idaho Department of Corrections (9th Cir. 2017) 865 F.3d 154, the Ninth Circuit stressed the importance of how this imbalance impacted the employee/rape victim and how a reasonable jury could conclude that the employer’s conduct “effectively condoned the rapist” and thus, created a hostile work environment for the victim.  In doing so, the Ninth Circuit overturned the lower court’s summary judgment in favor of the employer.

When the employer learned that a male employee was being investigated by the sheriff for the rape of an employee, it put the co-worker on a paid administrative leave, and did not warn any of its employees. (Yes, we understand the difficult balancing test between safety and privacy).  The employer, Department of Corrections, not only paid the co-worker while on leave but gratuitously noted that it “looked forward to…[his]…prompt return to work.”  (Yes, this case was before the #MeToo movement.)  Ms. Fuller, who had a relationship with the co-worker, disclosed the relationship to her employer.  The employer did nothing to warn or protect her, and she was subsequently raped by this same co-worker.

When Ms. Fuller, suffering from the impact of the rape, asked for a paid leave of absence, which the employer in its discretion could have granted, the employer denied her request.  Ms. Fuller was distraught, not only by the rape, but by the fact that her employer was paying her rapist but refused to pay her.  Supervisors continued to make supportive statements towards the rapist, telling staff to “feel free to give… [the coworker accused of rape] some encouragement.”   A supervisor opined to all that he “hate[d] that [the accused rapist] cannot come to the office until the investigation is complete.”

When Ms. Fuller expressed concern that the man accused of rape might return to her workplace, the employer responded that he “still was our employee” and that they did not want “a stigma hanging over” him in case the allegations were proven to be untrue. No empathy or understanding at all was expressed towards the female victim.  Even though Ms. Fuller obtained a civil injunction barring this co-worker from approaching her, all the employer did was indicate that an employee under an administrative investigation could not enter the premises.  It did not warn its staff that there was a stay away order or do anything to protect Ms. Fuller at all.

The Ninth Circuit concluded that, “…a reasonable jury could find the agency’s public and internal endorsement of…[the accused rapist] made it more difficult for Fuller to do her job, to take pride in her work, and to deserve to stay in her position.”

Courts often get hostile environment claims wrong; they just do, as demonstrated by the fact that this was a 2-1 decision rather than a 3-0 decision.  Our society and courts have much work to do to understand and embrace how women are impacted by sexism.  This opinion helps to further this important work.

Employer be warned, now is the time to fully embrace change, protect victims of harassment, discrimination and rape.  The times they are a changin’.

Jody I. LeWitter

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