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Home Depot U.S.A. Inc. may be liable to the heirs of a female employee who was murdered by a male supervisor, a known sexual harasser, a federal appeals court in Chicago ruled ( Anicich v. Home Depot U.S.A., Inc. , 2017 BL 93426, 7th Cir., No. 16-1693, 3/24/17 ).
The court March 24 revived a lawsuit filed by the estate of Alisha Bromfield, a Home Depot worker killed outside the workplace by regional manager Brian Cooper after what the lawsuit alleges was years of sexual harassment by Cooper.
The decision is important because it “clarifies the law” in Illinois and nationally that an employer can’t retain a supervisor who “obviously has problems,” said Jason Metnick of Meltzer Purtill & Stelle LLC in Chicago, one of the lawyers who represented Bromfield’s estate.
The U.S. Court of Appeals for the Seventh Circuit is “definitely following the trend” in Illinois and elsewhere of holding employers potentially liable for acts committed by employees they know are harassing others, Metnick told Bloomberg BNA March 24.
Bromfield’s case is “pretty extreme,” so the decision isn’t “groundbreaking” in the sense that many other employers might be facing similar facts, Metnick said.
But the court takes a “modern view” of the developing law in saying an employer may be liable for the consequences of a supervisor’s known harassing conduct, Metnick said.
Home Depot couldn’t claim surprise, Metnick said. Female employees, including Bromfield, repeatedly complained to other managers about Cooper’s behavior, he said.
The employer required Cooper to attend an anger management course, but he apparently never completed it, Metnick said.
Cooper was “a known threat” and Home Depot can’t pretend otherwise, Metnick said.
Attorneys representing Home Depot and two other companies that are allegedly joint employers weren’t immediately available for comment.
Cooper was convicted of first-degree murder and sexual assault for the 2012 strangling of Bromfield and is serving two life terms in prison.
A federal district court dismissed the estate’s negligence claims against Home Depot and two companies that ran the retailer’s garden center where Bromfield worked.
But Home Depot’s duty to monitor its managers’ conduct and Cooper’s alleged abuse of his supervisory authority to force Bromfield to join him on the trip that ended in her death could support liability, the Seventh Circuit said.
An employer may be vicariously liable for the off-duty conduct of a supervisor it knows or should have known was sexually harassing the victim, the court said.
Illinois state law generally holds that a person has no duty to prevent the criminal acts of another, Judge David F. Hamilton wrote in an opinion joined by Judges Diane P. Wood and Ilana Diamond Rovner.
But an exception provides that employers must act reasonably in hiring, supervising and retaining their employees.
The estate raises plausible claims Home Depot breached that duty, the court said.
Home Depot and the two other alleged employers argued that allowing the lawsuit to proceed would create “new and unjustifiable burdens” for employers.
They said employers have no obligation to fire or demote employees because of their use of inappropriate language at work or sexual misconduct.
But employers “already have that obligation” to investigate potential sexual harassment and discipline wrongdoers under federal and state anti-discrimination laws, the court said.
That Cooper’s violence occurred outside the workplace doesn’t insulate Home Depot from liability, the court said.
The lawsuit alleged Cooper threatened to fire Bromfield or reduce her hours if she didn’t accompany him to an out-of-state family wedding.
It was at a hotel after that event that Cooper strangled Bromfield to death.
Cooper’s use of his supervisory position to force Bromfield to make the fatal trip might be enough to find Home Depot liable for not acting earlier to remove his authority, the court said.
Kralovec Jambois & Schwartz also represented Bromfield’s mother, Sherry Anicich, who is also administrator of Bromfield’s estate. Movey & Parsky represented Home Depot. Busse Busse & Grasse represented the other two allegedly joint employers, Grand Service LLC and Grand Flower Growers Inc.
To contact the reporter on this story: Kevin McGowan in Washington at firstname.lastname@example.org
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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