EMPLOYMENT LAW: EMPLOYER LIABILITY FOR RE-HIRING A SUPERVISOR THAT WAS PREVIOUSLY FIRED FOR SEXUAL HARASSMENT, RACIAL HARASSMENT, OR NATIONAL ORIGIN HARASSMENT

It rarely happens, but it does occasionally — An employer re-hires someone that it had previously fired for sexual harassment, racial harassment, or national origin harassment.  That can create serious exposure to future suit if the employee commits the same conduct after being re-hired.  That can happen in a few ways.                                   

For non-supervisory co-employees, the victim must prove that the employer knew or should have known of the harassment and failed to stop it.  Proving the “knew or should have known” component can be difficult if neither the employee nor anyone else complained to management about the co-worker’s behavior.  Information that the employee had harassed other people and been fired for it can help prove that the employer “should have known” what was occurring. 

For cases in which an employee is harassed by a supervisor, the law immunizes the employer from liability if it can prove that it exercised reasonable care to prevent and correct any harassment and that it had anti-harassment policies in place that the victim did not utilize.  A few courts have determined that re-hiring a known harasser plays into the “reasonable care” portion of the employer’s immunity in the sense that an employer may not be acting reasonably if it re-hires someone that it had previously fired for harassment.   

Erbe Law Firm is currently prosecuting a federal employment lawsuit in which Erbe Law Firm’s client was sexually harassed by a supervisor who had previously been fired for violating the employer’s sexual harassment policy.  The judge has ruled that the case is “unique” and that Erbe Law Firm is entitled to introduce evidence of the supervisor’s earlier harassment and termination on the issue of whether the employer exercised reasonable care to prevent sexual harassment.  That case is scheduled to be tried to a federal jury in May 2010.  

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