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Brutal case shows protection shortfalls

Posted On: May. 1, 2017 12:00 AM CST

A federal appeals court ruling that reinstates negligence charges against Home Depot USA Inc. and associated firms in the rape and murder of a young worker by her supervisor highlights the need for firms to have well-coordinated programs in place to address sexual harassment of vulnerable workers by those in authority.

Observers stress that the March 24 ruling by the 7th U.S. Circuit Court of Appeals in Chicago in Sherry Anicich v. Home Depot USA Inc. et al. against Atlanta-based Home Depot in connection with the brutal murder is only an intermediary ruling, with the appeals court obligated to assume for now that the alleged facts are true.

Nevertheless, it’s a warning to other firms who fail to heed signs of sexual harassment.

This case involves a 21-year-old woman who worked as a clerk in the home improvement chain’s garden department in its Plainfield, Illinois, store.

The Home Depot case is “a teaching moment for employers about nipping these sorts of problems in the bud,” said Larry Peikes, a partner with law firm Wiggin & Dana L.L.P. in Stamford, Connecticut. “It’s a classic case of the apparent indifference or failure to take remedial measures.”

Home Depot did not respond to requests for comment.

These incidents usually happen where there is “a disparity of power relationships between boss and worker,” said Richard B. Cohen, an attorney with FisherBroyles L.L.P. in New York. “The greater the disparity, the more chance of something like this” occurring.

“We see in almost every case — the tragic ones and the ones that are just escalating incidents — there are always preincident indicators” of a problem, said Rick Shaw, CEO of Awareity Inc., a Lincoln, Nebraskabased provider of threat assessment, management and prevention solutions.

Many victims of sexual harassment at work never report it for fear of retaliation, said Chai R. Feldblum, commissioner on the U.S. Equal Employment Opportunity Commission.

“The clear lesson from this case is if you have an employee or supervisor who’s exhibiting violent or threatening behavior, you have to take action against that supervisor,” said employment lawyer Richard D. Tuschman in Plantation, Florida.

Employers cannot simply assume that because a supervisor is “not committing an overtly violent act or criminal behavior in the workplace” that the supervisor is not going to harm the employee outside it, and the employer can then be held liable in these cases, he said.

“The lesson learned is you have to have a sexual harassment program that’s not just on paper, because I’m sure Home Depot had one,” said Eric Hemmendinger, a partner with law firm Shawe & Rosenthal L.L.P. in Baltimore.

“You never really know when one of these situations is going to get out of hand, and that’s why you need to treat them seriously,” he said.

Certainly, “employers that are presented with sexual harassment situations committed by supervisors are going to need to think long and hard about what discipline they instill,” said David N. Michael, a partner with law firm Gould & Ratner L.L.P.

in Chicago. In this case, “the employers didn’t do enough as it related to the allegations against this individual of harassment and abuse.” They required the supervisor to attend anger management training on two separate occasions, “but they didn’t make sure” he completed them, Mr. Michael said, citing the 7th Circuit ruling.

Susan K. Lessack, a partner with Pepper Hamilton L.L.P. in Berwyn, Pennsylvania, said, “I’m not sure (the ruling) warrants any changes in the way that employers address harassment complaints. I think most employers investigate them and take remedial measures if it’s appropriate.”

But others say the case demonstrates that better-coordinated programs are needed.

The problem is, there may be different incident reporting systems in place at companies, “and they’re not connected together,” said Mr. Shaw. “Each one of those is a silo, and until they have the right strategies and the right tools, they will continue to have their pieces of the puzzle scattered all over the place,” he said.

Organizations should be encouraged “to make sure their plans are aligned, and that every function within an organization” is talking to the others, said Renata Elias, vice president with Marsh Risk Consulting in Dallas.

Employers must have in place a holistic prevention policy that includes communication of values, a clear policy and “serious and effective reporting,” said the EEOC’s Ms. Feldblum.

Job descriptions of managers and others should include the requirement that they act on harassment claims, she said, and corrective action should be proportionate. An employee who physically assaults someone should be fired, but a worker who makes inappropriate comments should be less severely disciplined, she said.