Workplace harassment teaching points abound in McCormack v. Safeway Stores, Inc. (D. Ariz. 2014). The court dismissed the case because Safeway lacked notice of an alleged history of sexual harassment and took prompt remedial action after the report of sexual assault by a co-worker. Both the teenage victim, Stabenchek, and her mother were Safeway employees. The victim’s mother reported sexual harassment after her daughter said a male clerk, Lopez, kissed her and grabbed her rear-end. Safeway suspended Lopez as part of an immediate investigation and fired him two weeks later. The result is another inducement for employers to exercise reasonable care to prevent and correct unlawful harassment, but consider how things might have gone differently.
The court initially explored whether it should apply the higher vicarious liability standard for supervisor harassment in place of the negligence standard for co-worker harassment. Lopez was a front-end manager when the victim was hired, but had been demoted to general clerk at the time of the assault. Although he directed some of her tasks, determined break schedules, and was sometimes left in charge of the store, the court found the evidence insufficient to support that Lopez was the victim’s “supervisor.” The court relied on the U.S. Supreme Court’s June 2013 decision in Vance v. Ball State to makes its determination. In Vance, the Supreme Court said that a supervisor must have the power to make economic decisions, such as to hire, fire, promote, or change compensation.
Under the negligence standard, an employer is liable if it knew or should have known of the harassment. Stabenchek alleged unwelcome sexual comments and thousands of sexual text messages over months preceding the assault, but admitted she told no one. She argued that Safeway should have known because on one occasion an assistant manager asked her into an office space after observing her disgusted reaction to the harasser. She told the manager he was “being a creep,” but declined to say more. Stabenchek’ s testimony of other instances of sexually charged conversations, jokes, and touching that did not receive reprimand was similarly unpersuasive because she also testified that no one involved appeared to be offended. Her personal offense at those jokes, without complaint, was not enough to put the employer on notice of actionable sexual harassment.
This was a good result for the employer. But what if Lopez had influenced discipline against Stabenchek on a prior occasion? What if co-workers had testified that they were offended at sexually charged conduct in the store or feared retaliation based on prior events? What if the assistant manager had persuaded Stabenchek early on to trust Safeway’s complaint procedure? Employers must take steps to raise their supervisors’ and employees’ awareness of what is appropriate and inappropriate conduct in the workplace. And employers must have preventive and corrective measures in place so that they can respond promptly to complaints and act appropriately.