An Employee Sexually Assaulted Twice within Four Days Loses Harassment Claim – Employers Must Move Fast, but Not that Fast.

Under Federal law, an employer can be held liable for sexual harassment among co-employees, regardless of whether one has supervisory authority over the other. However, the employer will not be held liable if it promptly responds in a reasonable manner to stop the harassment. Additionally, to sustain a Title VII claim, the plaintiff must allege that the employer allowed harassment that was severe or pervasive.

In Davis v. City of Charlottesville School Board, 2011 U.S. Dist. LEXIS 137875 (2011), the Charlottesville School Board (CSB) was not held liable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000 et seq., for two instances of sexual harassment by one employee against another occurring four days apart on a Friday and Monday, nor was the employer held liable for transferring, but not firing the offender.

The plaintiff, Sheila Davis, was first assaulted on Friday, December 11, 2009, by Warren Mawyer when he attempted to touch her breast and asked her if they were real or not. Immediately after this incident, Davis notified the assistant principal. In the second incident, the following, Monday, Mawyer grabbed Davis’ breast. Davis fought back to protect herself and reported it to her supervisors, who transferred Mawyer to another work location. Davis obtained a warrant against Mawyer, who was convicted and sentenced to 60 days in jail.

Davis’ Title VII employment discrimination claim was dismissed, however, for failure to present facts to show that the CSB was liable for Mawyer’s harassment. Employer liability results when the employer becomes aware of discrimination, fails to take effective action to stop it, and the discrimination is “severe or pervasive so as to alter the conditions of employment and create an abusive work environment.”

The court ruled that Mawyer’s harassment could not be imputed to the CSB; that “the allegation that the CSB failed to act fast enough between a Friday and the following Monday is insufficient to constitute a violation of Title VII.”