David B. Brushwood, BSPharm, JD
Federal and state laws create a mechanism for employees to sue their employers for failing to provide protection from sexual harassment. A court recently considered a lawsuit filed by a pharmacist who alleged that she should be allowed to sue her employer for the tort (civil wrong) of “outrageous conduct” based on alleged sexual harassment by customers.
Background
The pharmacist contended that “almost immediately” after she began working at the defendant pharmacy, “older, male customers began making unwanted sexual comments and sexual advances” toward her. The pharmacist allegedly told the store manager that she found these actions to be offensive, and the store manager said that she “should take it as a compliment.”
The pharmacist also reported the incidents to the district manager, who reprimanded the pharmacist for referring to the customers as “old.”
The alleged sexual harassment of the pharmacist by customers continued. On one occasion, the pharmacist was sexually harassed by a customer at the drive-through window. Shaken by the harassment, the pharmacist sat down and cried. She allegedly told the store manager about the incident, and he responded, “You should quit wearing skirts. You know why it is happening.”
The pharmacist reported the incident to the corporate human resources department, which sent her a copy of the company’s dress code and instructed the pharmacist to make sure that she was following it. The pharmacist began to receive negative performance reviews, which she alleged were in retaliation for her reports of sexual harassment by customers.
The pharmacist filed a lawsuit based on a variety of statutory provisions, and she included the claim of “outrageous conduct.” The pharmacy moved for dismissal of the “outrageous conduct” claim, contending that it was barred by the state’s worker’s compensation law.
Rationale
The court noted that worker’s compensation establishes an exclusive remedy that provides benefits to employees who suffer an injury “arising out of and in the course of the employee’s employment.” An injury that arises out of employment cannot be litigated under tort law by an employee against an employer. Any such claim must be processed through the worker’s compensation system. The pharmacy contended that the pharmacist’s injury arose out of her employment because the pharmacist “met and interacted with the male customers who harassed her because of her employment as a pharmacist at the pharmacy.” The pharmacy argued that the pharmacist “did not have a private relationship with the customers outside of work, and the harassment took place during plaintiff’s work hours.”
The court could not locate any prior cases in which an employee had alleged “outrageous conduct” of an employer for failing to prevent sexual harassment by customers. In a prior case that alleged co-employee sexual harassment, the court ruled that the connection between the sexual harassment and the harassed employee’s work duties was “insufficient to sustain a determination that the harassment arose out of employment.”
On the basis of this precedent, the court rejected the pharmacy’s argument that the pharmacist’s injury arose out of her employment simply because she did not know the customers prior to the employment and because she was subject to the customers’ behavior only because of the employment. The court concluded, “Plaintiff has alleged an injury that is inherently private and, therefore, does not arise out of her employment.”
The pharmacy’s motion to dismiss the “outrageous conduct” claim was denied.
Discussion
The tort of “outrageous conduct” is based on conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.”
In this case, the court allowed the pharmacist to proceed with her “outrageous conduct” claim against the pharmacy based on sexual harassment by customers.
Perhaps more important, the court recognized that worker’s compensation law does not bar tort-based lawsuits under these circumstances. Sexual harassment by customers does not arise out of a pharmacist’s employment.