You and the Law
Employee Actions and Inactions in the News
The answer: When it becomes so great of a deviation from work activities that it can be characterized as a “deviation” that is “so unreasonable and unexpected that it is not within the co-employees’ scope of employment.” Otherwise, the general rule is that:
“Workers compensation may be an exclusive remedy… if the co-employee’s actions are within the course and scope of employment.”
These were the rules recognized by the Delaware Supreme Court in the case of Grabowski v. Manglen, decided July 9, 2007.
The facts: Grabowski, the plaintiff, worked at an oil refinery where coworker horseplay seemed to be commonplace. Grabowski suffered physical and emotional injuries when three coworkers blocked his exit from a bathroom and forced him to the floor and wrapped him from ankles to shoulders in duct tape. Following surgery for his injuries, Grabowski collected more than $300,000 from his worker’s compensation claim, and then filed a negligence-based civil action against his coworkers. He argued that the taping incident occurred beyond the scope of his employment.
The Delaware State Supreme Court laid down the factors for testing whether horseplay is inside or outside the scope of employment. The judge must look at:
1) Extent and seriousness of the deviation;
2) Completeness of the deviation (i.e., whether it was comingled with the performance of duty or involved an abandonment of duty);
3) Extent to which the practice of horseplay had become an accepted part of employment; and
4) Extent to which the nature of the employment may be expected to include some horseplay.
The court cited a worker’s compensation treatise to explain how the first two deviation factors come into play.
“If the primary test in horseplay cases is deviation from the employment, the question whether the horseplay involved the dropping of active duties calling for claimant’s attention as distinguished from the mere killing of time while claimant had nothing to do assumes considerable importance. There are two reasons for this: First, if there were no duties to be performed, there were none to be abandoned; and second, it is common knowledge that idleness breeds mischief, so that if idleness is a fixture of the employment, its handmaiden is mischief, also.”
Clearly, the bounds of horseplay can exceed the scope of employment.
Employee not Notifying Employer of Harassment Barred from Suing
The facts: An Illinois employer, Morningstar, Inc., had a written internally published policy prohibiting sexual harassment. The policy provided a simple procedure for notifying the company of discrimination complaints. Employees believing that they had been harassed were directed to discuss it immediately with their manager or the Human Resources department. It further noted, “This complaint procedure is a critical component of Morningstar’s efforts to maintain a workplace free of harassment. Employees are strongly urged to utilize it, and are assured that the company will not retaliate against them for doing so.”
Morningstar employees were given further information on whom to notify of harassment in a document entitled Managing to Prevent Harassment Participant’s Guide. The guide posed the hypothetical question, “To whom should an employee at your company complain about harassment?” The response offered was to look at the company’s policy to determine the answer. “The answer is not a coworker or the harasser. Complaints to coworkers do not put the company on notice of the harassment. Complaints to the harasser are encouraged, but cannot be required.”
Reportedly, a male employee (Mr. X) felt uncomfortable when his gay co-worker (Mr. Y) allegedly stared at his genitals in the men’s restroom at work. However, Mr. X bypassed or ignored his employer’s sexual harassment complaint procedure, preferring to send an anonymous e-mail to Mr. Y calling for his coworker to “stop staring.”
Mr. Y viewed the e-mail as a threat and reported it to the Human Resources department. The company management had the e-mail traced back to the employee, Mr. X, and then fired Mr. X. Following this termination, Mr. X sued the company, claiming a hostile work environment in violation of Title VII, the federal antidiscrimination in employment statute.
Result: Case dismissed because Mr. X had failed to follow company reporting procedure to inform management about the alleged harassment. Thus, the company had no notice and duty to address it. In the 7th Circuit U.S. Court of Appeals (Illinois, Indiana, Wisconsin) decision upholding dismissal of the case, the court stressed how an employer’s notice or knowledge of incidents is a “prerequisite for liability.”
To avoid dismissal of sexual harassment civil lawsuits, employees must present evidence showing that they:
“Gave the employer enough information to make a reasonable employer think there was some probability that he was sexually harassed. The idea that the message ‘Stop staring! The guys on the floor don’t like it’ somehow communicated a sexual harassment complaint to the company is too farfetched to accept. Nothing in that message calls sexual harassment to mind, and a message on behalf of ‘the guys’ says little or nothing about whom the speaker represents or how strong the dislike may be.” (Bernier v. Morningstar, Inc. , 7th Cir. No. 06-1617, Decided July 17, 2007)
Employers should review their written antiharassment policy to assure that it covers and prohibits same-sex harassment, gender and sexual-orientation discrimination and retaliation. MF
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