For some workers, the most significant on-the-job threat comes not come from a chemical, machine, scaffold or even a physical force such as heat or electricity. The greatest threat comes from the other persons in the workplace. Nurses in mental health facilities and prison guards are two examples that spring readily to mind. The situation is particularly dangerous when the position is held by a female in an institution for males. What recourse does a worker have if, heaven forbid, she gets raped by a male patient or inmate? A recent federal case sheds light on this question. Here's a look at the case and what it suggests about the responsibilities of employers to safeguard their workers.

THE CASE

What Happened: The victim in this case worked in a Wisconsin prison with mostly male inmates, not as a security guard but as a payroll specialist. She put in long hours and often worked at night. Inmates weren't allowed in the administrative offices where she worked. But exceptions were made for inmates assigned to work duty as janitors.

One night, thinking the office was empty, she looked up to find one of those inmate janitors staring at her in a way that made her most uncomfortable. She made a polite excuse, let herself out and rushed to join her colleagues who had gathered at a local watering hole. The victim told the gathering what had just happened. "They seemed surprised" and their "mouths kind of dropped," she would later testify. The warden told her that she "was so sorry" and reassured the victim that "they'd make sure nothing like this ever happened again."

But eight days later, it did. The same janitor cornered the victim after hours. This time there would be no escape. The victim was brutally raped. She sued under Title VII of the U.S. civil rights law which requires federally regulated employers to protect workers against sexual harassment. The prison denied liability and asked the court to dismiss the case without sending it to the jury.

The Issue: Could a "reasonable" jury conclude that the prison was negligent not to protect the victim against being raped by the inmate?

What the Court Decided: The U.S. Seventh Circuit Court of Appeals said that, yes, a reasonable jury could come to that conclusion. So the case would have to go to the jury to decide if the prison was negligent and thus liable to the victim for sexual harassment under Title VII.

Erickson v. Wisconsin Dep't of Corr., 2006 U.S. App. LEXIS 28125, Nov. 14, 2006

ANALYSIS

To win a sexual harassment case under Title VII, a worker must show that the employer had "reasonable notice" that sexual harassment might occur. Such notice can come from one of two places, the court explained. The prison in this case had notice from both sources, towit:

Information Provided to It Directly By the Worker: The victim had brought the previous incident with the inmate to the attention of the warden and other prison staff. This should have put prison officials on notice that the risk of sexual harassment was present and needed to be addressed, the court said.

What the Employer Knows about the Workplace Environment: The prison also had general notice that sexual harassment of workers by inmates was a serious risk. Prison officials provided training to female workers, including the victim, about the dangers of making contact with male inmates. Even before the incident, the prison had evidence from the parole board and from previous experience that the rapist in this case was a security risk and shouldn't be entrusted with janitorial work duty.

But despite all of the warnings, the prison failed to take action to protect the victim in the eight days that passed between the first and second incident. What made this especially damning is that the warden had assured the victim that it would take such action and could easily have done so by taking the inmate off work duty.

Conclusion

The other interesting aspect of the Erickson case is that it was brought as a sexual harassment claim under Title VII. This is important because sexual harassment victims can collect money damages under Title VII including, in some cases, damages covering mental anguish and distress. The prison argued that sexual harassment isn't the same thing as sexual assault. But the court didn't buy the argument. A jury could interpret the duty to prevent sexual harassment as covering rape, it said.

THE CANADIAN PERSPECTIVE
Criminal Liability of Corporations for Safety Offences under C-45

By Glenn Demby

Editor's Note: The story above isn't directly relevant to a Canadian. So here's one that is. It comes from something I wrote for Safety Compliance Insider, the monthly newsletter for Canadian safety coordinators published by SafetyXChange's parent company, Bongarde Media.

A corporation is a legal person. Like a biological person, it can be guilty of a crime if the prosecutor shows that an individual within the corporation committed a crime. Prosecutors must then persuade the judge or jury to hold the corporation responsible for that individual's offence. This concept is called attribution of liability and it's at the centre of Bill C-45. A corporation could be held responsible for an individual's criminal negligence before C-45 took effect. But under the old law, the prosecutor had to prove that the individual who committed negligence was the corporation's "directing mind." Corporations were thus accountable for the actions of only a small circle of individuals within the organization. C-45 loosens up the attribution rules and makes corporations liable for a much wider range of individuals.

Let's use a recent case from Ontario to demonstrate the new attribution rules and their potential impact. The case involves an incident that took place before C-45 went into effect. So the court had to apply the old law.

HOW CASE WAS ACTUALLY DECIDED

What Happened: It's a warm day in June. A power generating plant is getting ready to release a large quantity of water from a dam into a nearby lake. Although the spillway is blocked from view, the plant manager knows that members of the public swim and sunbathe in the part of it over which the water will pass. A mechanic also warns him that the sudden rush of water will imperil bathers. But the managers orders the sluice gates open. Sure enough, two bathers are killed. The manager is prosecuted for criminal negligence. The prosecutor wants to convict the manager and attribute his crime to the corporation.

Ruling: The Ontario Court of Justice finds that the corporation can't be guilty.

Explanation: The plant manager isn't a "directing mind" of the corporation. He can't make or design corporate policy, the court explains. All he can do is implement it by performing operational matters, such as setting budgets and production and achievement targets. And because the plant manager lacks the requisite "executive authority" to be considered a directing mind, the corporation can't be liable for his criminal negligence.

R. v. Ontario Power Generation, [2006] O.J. No. 4659, Nov. 14, 2006

HOW THE CASE MIGHT HAVE BEEN DECIDED UNDER C-45

What Happened: Assume that the same incident happens but that it occurs not on June 23, 2002 but on June 23, 2004 - after C-45 took effect (on March 31, 2004). The court would thus have to apply the C-45 attribution rules.

Ruling: The court could find the corporation guilty even though the manager is not its directing mind.

Explanation: Under C-45, corporations are responsible for the actions of their "representatives," which include not just a directing mind but workers, supervisors, managers, officers, directors and even non-employees, such as contractors. Here the plant manager was clearly the corporation's representative. To hold the corporation liable, the prosecutor would also have to prove that the plant manager was acting within the scope of his authority when he ordered the sluice gates open. But the prosecutor would have little trouble meeting this burden in this case.

One final requirement: The prosecutor would have to show that a senior officer of the corporation could and should have taken reasonable steps to prevent the plant manager from committing the offence. We don't know enough about the facts of the case to determine if the prosecutor in Ontario Power could have met that burden.

MEMBER REPLY
OSHA & Terrorism

After reading your article of last week on OSHA and terrorism, I have to agree with OSHA that terrorism is not something we can plan for. We never know when this might happen so we can only impress upon our staff (including management) of the need for due diligence. Unfortunately when something does not happen for a long time then most people tend to become complacent. What do we look for? I always cite the instance when I worked in a refinery in Scotland when we had a bomb scare and we were told to look for a suspicious package. At 10 pm when it's dark what does a suspicious package look like?

I think the best way at the moment is to make sure that we have an appropriate response in our emergency manual and that all staff are aware of it so that should anything happen then we can respond quickly and effectively. Again, knowing how quickly people forget things, we should have yearly mandatory in-services for emergency procedures. We also put reminders in with the pay stubs as this seems to attract people's attention. Your pocket cards could also help in this regard, too.*

Frank Pierpoint-Allen
Director of Environmental Services
The Salvation Army Buchanan Lodge
New Westminster BC

* Mr. Allen is referring to Bongarde's Pocket Safety Cards on terrorism preparedness. To find out more information about this product, click here.

QUIZ

In last week's issue of the SafetyXChange compliance newsletter, we published a quiz to test how much Americans know about Canada. In the interest of fair play and U.S.-Canadian amity, we had promised to provide a quiz about the U.S. for our Canadian members. But since the issue is running longer than planned, we'll save the quiz for next Monday.

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