By Rosalia Fiorello
Like Title VII to the Civil Rights Act of 1964, the Tennessee Human Rights Act (“THRA”) forbids workplace harassment and other forms of discrimination on the basis of sex. Recently, the Tennessee Court of Appeals considered the following issue: May an employee bring suit under the THRA if the sexual harassment did not occur at work and did not occur during work hours?
The short answer to the above-stated question is “yes.” The facts of Phelps v. State of Tennessee are relatively straightforward. The Plaintiff, Phelps, worked as a server for a restaurant operated by the State of Tennessee at Paris Landing State Park. In 2017, the restaurant hosted a Halloween party open to the public. The Court noted the party was adults-only because the restaurant’s bar was open, and alcohol was served in abundance.
Once the party ended, a park employee invited Phelps and other co-workers to an after-party at his residence on park property. Phelps claimed at the after-party, an assistant park manager, Walsh, who was second in command of the park, was intoxicated and sexually assaulted her. Phelps also claimed after she reported the incident, the Defendant, among other retaliatory actions, allowed Walsh to continue working around her at the park and to continued harassing and threatening her.
The trial court found that there were genuine issues of material fact as to whether Walsh was Plaintiff’s supervisor; whether he “sexually harassed women at Paris Landing State Park prior to the Halloween party” and Defendant was aware of it; and whether “a reasonable factfinder could conclude that Walsh’s action in grabbing [Plaintiff] by the neck and thrusting his body against her in a sexual manner was ‘extremely serious’ and sufficient to impose liability on the Defendant.” However, the trial court granted summary judgment to the Defendants because it found that the sexual assault did not occur “in the workplace.” Regarding the retaliation claim, the trial court held that Plaintiff did not establish that Defendant took a “materially adverse action” against her after she reported the assault.
The Appeals Court vacated the decision and remanded the case back to the trial court. In it’s holding, the Court noted that harassment outside of the traditional workplace, “can and often does spill over and affect the victim’s workplace experiences,” and that the following factors should be considered when analyzing such a case:
- The proximity in time and space to the “traditional workplace;”
- The relationship of the event to the employees’ work duties;
- The extent to which the employer planned, promoted, or sponsored the event;
- The degree to which employees were pressured or encouraged to attend the event and the number of employees in attendance;
- The employer’s knowledge of any pattern of similar harassment by the offending employee under prior similar circumstances;
- The extent to which the off-premises harassment impacted the victim’s workplace experience after it was reported to the employer, including whether the victim was forced to continue working with the harasser; and
- Any other circumstances pertinent to the inquiry.
It is pertinent to note that prior to analyzing the above-stated factors, the Court found that it would be inappropriate to create a “bright-line principle” that “would disallow a court from considering harassing conduct that occurs away from the physical premises owned or controlled by an employer, or after traditional work hours.” In other words, there is no clear-cut rule to how these cases will be handled in the future. The above-stated factors simply put forth the types of things the Court will consider in future cases such as this one.
To read the full opinion, visit c36da17e-38ff-43cb-bf24-9115a5e3ee86.pdf (tncourts.gov).
While it may be tempting to nix outside work functions all together, holiday and after-hours events are great ways to show employees what they mean to the company and build camaraderie amongst co-workers in a non-office setting. There are ways to prevent your company from becoming the next Phelps decision. The following are a few tips keep such events under wraps.
Do you have a work-related social event policy in your handbook? It is important to remember that your duty of care as an employer may extend to work-related functions. Consult with your employment attorney to ensure your handbook is updated to include a clear and concise policy about events outside the office.
One of the best ways to prevent workplace harassment, whether on the job or at after-hours or a corporate-sponsored event, is to review the policy with employees regularly and before the event in question. Mandatory anti-harassment training about the company’s specific policy is one way to protect your employees and everyone in your workplace from harassment. Keep in mind the training should be required for all employees at all levels of your organization. When the C-suite team, managers and supervisors are visibly present during training, employees are less likely to dismiss the training’s significance. Further, the presence of upper management solidifies and constructs a workplace culture about what behavior will not be accepted in the workplace.
In conjunction with proper training, it is key to regularly enforce, abide, and encourage reporting for violations of the policy to maintain the culture employers have created. Poor culture can lead to high turnover and ultimately poor business performance. Prior to the event in question, inform all employees that any complaints from the event will be taken seriously, documented, and investigated to conclusion. Again, if employees understand that harassment or inappropriate behavior will not be tolerated, they will be less likely to act in a method contrary to the policy.
Consult with employment counsel to establish the proper safeguards against sexual harassment claims. Not only will it protect employees, but it will also protect the best interests of the company. After all, the thought of a company with no policies or procedures against events like the one in Phelps is a haunting prospect.
Wimberly Lawson Wright Daves & Jones, PLLC
Nashville, Tennessee office
[email protected]