A recent California case, Sabori v. Dollar Tree Stores, Inc., demonstrates that proper sexual harassment training, policies, and procedures can help an employer deal appropriately with workplace harassment issues.
Alexandra Sabori visited a Dollar Tree store in September 2015, where she discovered an iPhone filming her while she used the restroom. She contacted the police. The owner of the iPhone—the Dollar Tree manager, Carlos Martinez—was both terminated and arrested that day. Martinez pled no contest to the criminal charge. Within weeks of his arrest, six articles had appeared online detailing the events.
Sabori and five other women brought suit against Dollar Tree, alleging invasion of privacy as well as negligent hiring and retention, among other claims.
Sabori claimed that Dollar Tree negligently hired and retained Martinez because Dollar Tree knew—or should have known—that employing Martinez created this particular hazard. Sabori argued that had Dollar Tree called Martinez’s two former employers, it would have learned that he was fired for personnel misconduct at both employers, one of which was due to harassment based on sexual orientation and the other due to payroll issues.
Dollar Tree hired Martinez in June 2014 after running a background check that revealed no criminal history. Martinez received the Store Associate Handbook, which included an admonition against unwanted sexual advances and sexually harassing behavior.
The court held that even if Dollar Tree had called Martinez’s former employers, it could not have known that he would film customers in the restroom. While he had been fired for misconduct, it was not the same sort of misconduct alleged in this case.
Sabori further argued that Dollar Tree should have been aware of Martinez’s propensities because a Dollar Tree employee had alleged sexual harassment against him. Evelyn Agraz, an employee working under Martinez, had reported sexual harassment to a Dollar Tree district manager. Agraz testified that she left messages but was unable to get a response. She also testified that she did not suspect that Martinez was filming customers in the restroom.
The court held that Agraz’s report did not make Dollar Tree aware of Martinez’s bathroom videos, in large part because she herself did not suspect it. Sabori argued that by not investigating this initial allegation, Dollar Tree accepted responsibility for Martinez’s sexual harassment more generally, positing that it is likely that an investigation into Agraz’s claim would have uncovered Martinez’s bathroom videos.
Dollar Tree argued that Martinez’s actions were unforeseeable, and the court agreed. California courts have generally declined to impose employer liability for actions that are triggered by “propinquity and lust” and not by the employee’s duties. An employer can be held liable, however, for ratifying or authorizing a tort; in practice, this means that if an employer is aware of sexual harassment and does not investigate or take mitigating actions, that employer can be held liable for subsequent sexual harassment.
The court held that failing to investigate one claim does not mean that the employer has ratified a different action against a different person. Sabori may be right that an investigation into Agraz’s claim could have unearthed the videos, but an employer who investigates one sexual harassment claim is not expected to investigate other, unsuspected, sexually harassing behavior. The court held that Dollar Tree was not liable for ratifying Martinez’s behavior, substantially because he was fired the very day Dollar Tree became aware of the videos.
Sabori v. Dollar Tree shows that proper sexual harassment training, policies, and procedures can provide a successful defense for an employer who is sued. Beginning in 2020, employers with five or more employees must provide sexual harassment training in California. As part of this training, employers should ensure that they have documented reporting and investigation policies and procedures and those procedures are communicated effectively to their employees.