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Sexual and other forms of unlawful harassment continue to be one of the biggest problems in the workplace. Responsible employers (i.e. employers who honestly want to prevent harassment in the workplace) take reasonable steps to prevent harassment, such as employee training, prompt investigations of complaints, and appropriate discipline of harassers. We could debate how many employers fall into the category of “responsible employers” but even responsible employers often fail to do everything that they can reasonably do to prevent harassment.

One reason that employers fail to prevent harassment is that employees fear retaliation, having their complaints trivialized, or being labeled as “disgruntled” if they complain. And these fears are justified. According to a report from the EEOC, one study found that 75% of employees who spoke about mistreatment in the workplace experienced retaliation.  For this reason, many employers do not know how prevalent harassment is in the workplace.

The U.S. Seventh Circuit Court of Appeals has permitted a lawsuit against Home Depot to move forward where the plaintiff alleges that Home Depot’s negligence resulted in one of its supervisors raping and murdering her daughter. The plaintiff’s daughter, Alisha Bromfield, worked in the gardening section of a Home Depot store in Illinois. The supervisor, Brian Cooper, served as the regional manager responsible for the store where Bromfield worked. According to the court, Cooper’s escalating harassment “included verbally abusing [Bromfield] while throwing things, controlling and monitoring her both during and outside her work hours, and requiring her to come with him on business trips. After five years of that treatment, he used his supervisory authority to require Alisha to come on a personal trip with him—to an out-of-state family wedding—by threatening to fire her or cut her hours if she refused. She went. After the wedding, he killed and raped her.”

Bromfield’s mother has alleged that Home Depot and two other companies that jointly employed Cooper, negligently supervised him and are, thus, responsible for Cooper’s rape and murder of Bromfield. Cooper allegedly had a history of sexually harassing younger subordinates like Bromfield. For example, before he turned his attention to Bromfield, he allegedly fixated on a different younger subordinate named Jessica. He allegedly made comments to Jessica about his genitals, rubbed his genitals against her, and forced her to take a road trip alone with him while he talked about his genitals. Prior to Bromfield’s rape and murder, Bromfield and Jessica allegedly both complained to management but not enough was done to stop Cooper, basically just giving him slaps on the wrists.

There is little doubt that Home Depot could be liable for Cooper’s actions under civil rights statutes that prohibit sexual harassment. His actions constitute some of the most extreme sexual harassment anyone could commit. The issue before the Seventh Circuit, however, was whether Home Depot could also be held liable under Illinois common law for negligent supervision. Unlike civil rights statutes, common law claims do not have any caps on damages. If Bromfield’s mother could only sue under, for instance, the federal law that prohibits sexual harassment, Home Depot’s liability would be capped at $300,000. If it found Home Depot and Cooper’s other employers liable for Cooper’s rape and murder of Bromfield, a jury would likely award Bromfield’s mother far more than $300,000 for the loss of her daughter, who was a young woman in her 20’s.

The U.S. Ninth Circuit Court of Appeals recently held that a jury could reasonably find that a Sheriff unlawfully sexually harassed one of his female corrections officers because he repeatedly hugged her and, on one occasion, kissed her. The female corrections officer complained to supervisors about the Sheriff’s harassment but they did not forward her complaint for investigation.  The court found that a jury could reasonably determine that this conduct created a hostile work environment.

The Ninth Circuit reversed the decision of a trial judge who had thrown the case out on summary judgment because he did not believe hugging could constitute sexual harassment. While hugging may not constitute unlawful sexual harassment in every case, the Ninth Circuit found that it did in this case where, among other things, (1) the Sheriff was the highest official in the department; (2) the hugging occurred over 100 times over twelve years; (3) the hugs were chest-to-chest; and (4) there was evidence that the female corrections officer who brought the case needed to get sleep medication because the Sheriff’s behavior upset her so much.

The court interestingly found that the alleged harasser’s prominent position made his conduct more likely to create a hostile work environment. The Sheriff won his position through an election and he was the highest official in the department. According to the court, the Sheriff’s high rank and authority over his employees gave his harassment a “threatening character” that would not have been the same had the Sheriff been a co-worker of the female corrections officer.