By Ryan P. Sink, Fox Williams & Sink LLC
This article does not represent the opinions of the Indianapolis Bar Association, and the author of this article does not take any stance on the merits or defenses of any potential claims at issue in this matter.
With allegations against Indiana's Attorney General Curtis Hill making national news, Hill now faces calls to resign amid his adamant denials and claims of unfairness in the investigatory process. Taft Stettinius & Hollister LLP (Taft) authored a memorandum outlining the alleged factual allegations and legal analysis for potential Title VII hostile work environment claims. The public likely has questions as to why this memorandum came to the conclusion that a claim of sexual harassment would not be successful against the General Assembly.
The media has repeatedly quoted the partial conclusion that, "[w]hile AG Hill's alleged conduct toward the legislative employees was inappropriate, it was likely not severe or pervasive enough to result in a hostile work environment claim." But the media has failed to explain why Taft concluded that "the risk of liability is very low."
First, to be actionable the harassment must be severe or pervasive. As explained in the memo via cites to numerous Seventh Circuit cases, the majority of Hill's alleged behavior simply does not meet this legal standard. The lone exception involved alleged unwanted physical touching of a private area to one individual, which the memo concluded likely would meet the "severe" threshold. But this does not end the analysis for a sexual harassment claim.
Second, for an employer to be liable for the conduct of a third party, as explained in the memo the conduct must have some impact in the workplace. None of the accusers worked for Hill or had daily interaction with Hill, and the conduct at issue occurred outside of the workplace and work hours. The memo focuses on the employer's risk of liability, not Hill's personal risk of liability for potential claims such as assault and battery.
Third, the largest hurdle for sexual harassment claims, largely unknown by the public, is the issue of vicarious liability. Employers can only be held liable for the conduct of its non-supervisory employees and/or third parties if they were negligent in preventing the harassment. Employers can only be held liable for the conduct of its supervisory employees if the employee complained about the behavior and the employer failed to take prompt remedial action. In other words, lone incidents will rarely suffice to create vicarious liability for employers, so long as the employer promptly investigates, takes remedial action, and the behavior does not recur in the future. This legal analysis is far-removed from politics and social norms and may appear nonsensical to the public, but it helps explain why the memorandum concluded that the risk of liability for a claim of sexual harassment was low.
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