Liability for workplace violence still unresolved

As the author of the employment law articles for the Springfield Business Journal for the last couple of years, I usually write about the most recent employment-related regulations or cases.

However, I would like to deviate from that this time to discuss a federal law that has been around for about five years but has gained little attention in the human relations field.

In 1994, Congress passed the Civil Rights for Gender Motivated Violence Against Women Act.

This legislation created a civil cause of action to recover monetary damages for crimes of violence against women. Although the act is based upon criminal activity, it may have implications in sexual harassment lawsuits against employers.

Basically, to state a claim under the 1994 act, there must be a crime of violence motivated by the victim's gender.

The alleged crime of violence is normally a felony under federal or state law. Typically, these crimes may include rape or some form of sexual assault.

It could be gender motivated by the existence of inappropriate sexual advances or behavior, for example, much like that alleged in sexual harassment claims.

However, a criminal complaint, prosecution, or conviction is not necessary before a lawsuit may be filed based on this federal statute.

Also, the act does not require a claimant to exhaust administrative remedies prior to instituting the lawsuit, nor is there a cap on damages, both of which are imposed upon Title VII claimants.

Further, the act provides for individual liability for compensatory and punitive damages.

Is the employer liable, though, for the criminal acts perpetrated by one of its employees?

Although this federal statute does not provide that an employer is directly liable for such workplace violence, an argument could be advanced that the employer is liable if the employee was acting on behalf of the employer.

If you recall, this theory was used by the U.S. Supreme Court last year to explain how an employer is liable for sexual harassment by its supervisors.

This specific issue was discussed but not answered in 1998 by a federal district court in Alabama.

In Braden vs. Piggly Wiggly, the plaintiff claimed that she was sexually assaulted by her supervisor, Derrick Bradley.

She filed a lawsuit against Bradley and her employer, Piggly Wiggly, asserting claims based on this act under discussion, Title VII, and two state law claims.

Unfortunately, the court did not resolve the question of whether Braden could assert a claim against Piggly Wiggly under the act, because the court found she failed to sufficiently plead this claim in her complaint.

The court indicated that it would decide whether Piggly Wiggly would be liable under the act on the basis of respondeat superior (employer responsibility for its employee's actions) at a later time if the claimant amended her lawsuit.

Interestingly, the court remarked that no other court, to date, has addressed whether an employer could be held liable under the act for its employee's criminal conduct.

As the question of employer liability under the act is still unresolved, I am confident the issue will be debated in the courts.

Workplace violence is on the rise in this nation and gaining more public attention. The fatal shooting by a Xerox worker of seven coworkers in Hawaii on Nov. 2 serves as a tragic reminder.

(Bob Lawson Jr. practices labor and employment law representing management with the law firm of Blackwell Sanders Peper Martin LLP in Springfield.)