Can Employers Be Liable for Sexual Harassment Off-Site or After Hours?
By Paula Jackson
March 15, 2021
The Tennessee Court of Appeals recently indicated that an employer could be potentially liable for sexual harassment and discrimination under the Tennessee Human Rights Act (“THRA”) if one of its supervisors or employees sexually harasses another employee off-premises or outside of traditional work hours. In that case, a female employee attended an off-site company-sponsored Halloween party where alcoholic beverages were served. At an after-party that night near that same location, she was sexually assaulted by a co-worker. There was some evidence that the employer knew that co-worker had harassed other employees in the past. After the victim reported the incident, the employer failed to ensure that she did not have to work with her harasser.
So, how do Tennessee courts determine if an employer will be held liable for sexual harassment and discrimination? Although courts look at whether the incident occurred close to the work location or traditional work hours, they also consider whether the event where the harassment occurred was related to the victim’s employment in some manner. For example, employers could be responsible, of course, if the event related to the employee’s work duties. However, the employer could also be liable if it sponsored, planned, promoted, or even just encouraged employees to attend the event from which the harassment stemmed. Additionally, courts look at whether the employer knew that the employee had previously harassed others in similar circumstances and whether the harassment impacted the victim’s work environment after she reported it, including whether the employer forced her to keep working with her harasser.
The Court further indicated that an employee could prove retaliation under the THRA (or that the employer took a materially adverse action against her due to her report of sexual harassment) by not only using traditional methods (e.g., that the employer disciplined her or cut her pay for reporting the harassment) but also just by simply proving that management knowingly allowed the harassment to continue.
So, what steps can employers take to try to protect themselves against liability? In training, educate employees that anti-discrimination and harassment policies may apply to certain situations outside the workplace. Do not sponsor, plan, promote, or encourage events outside the workplace. Immediately shield an employee who reports sexual harassment from the accused employee so that no further harassment will continue. Consult counsel, investigate the incident(s) promptly, and appropriately discipline employees who violate the workplace harassment and discrimination policies without delay. Remember to ensure that employees who have exhibited patterns of harassment and/or discrimination are not allowed to do so again in a similar situation.
Phelps v. State of Tennessee, M2020-00570-COA-R3-CV (Tenn. Ct. App. Mar. 10, 2021). This case can be found at https://www.tncourts.gov/sites/default/files/phelps.kelly_.opn_.pdf. The THRA applies to employers with eight or more employees in the state of Tennessee. Tenn. Code. Ann. § 4-21-102(5). See id. at 15-16, 20-22. See id. at 25-26.
 See id. at 15-16, 20-22. See also Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 341 (6th Cir. 2008) (“An employer’s responsibility to prevent future harassment is heightened where it is dealing with a known serial harasser and is therefore on clear notice that the same employee has engaged in inappropriate behavior in the past.”).