LINCOLN, Neb.—State government was at fault for allowing a female employee to be sexually harassed, the Nebraska Supreme Court ruled Friday in what is believed to be the state’s first high-court test of a landmark legal precedent set a decade ago.
“If employers don’t want to see me, or a lawyer like me, in court, they will take a copy of this court decision and have it distributed to their managers, employees, and all their supervisors and require them to read it,” said Lincoln attorney Kathleen Neary. “You cannot treat female employees with disrespect, and you must take complaints of sexual harassment … seriously.”
The state Supreme Court said that the Department of Correctional Services didn’t take complaints lodged by warehouse worker Andrea Lacey, Neary’s client, seriously enough five years ago. And in defending the corrections’ department, Attorney General Jon Bruning’s office failed to show that it passed a two-pronged test that determines whether employers are liable for sexual harassment committed by supervisors, the court said.
Bruning’s office declined to comment on the decision and answer questions, including whether he thought the corrections’ department handled the harassment claim appropriately. The corrections’ department also refused to comment.
Lacey’s supervisor, Jeff Drager, testified that he tried to create a “fun” atmosphere at the corrections’ department warehouse by encouraging employees to joke with one another.
“This joking consisted of sexual comments and questions directed toward Lacey that started within two weeks of the beginning of her employment,” in early 2004, Judge John Wright wrote in the opinion for the court. “Examples of Drager’s behavior include asking Lacey how often she and her boyfriend had sex, asking her questions about oral sex with her boyfriend, asking Lacey whether she had sex in the parking lot, and asking whether she had sex when she went home.”
The conduct continued for several months. Six months after she started the job, Lacey told the warehouse manager she was fed up and was going to quit.
She was told by an administrator that the department had no tolerance for such behavior and to go back to work. Lacey believed the situation would be resolved.
Instead, she continued to work with Drager for 40 hours a week. A month later, Drager was ordered to stay away from Lacey and told that he was no longer her supervisor.
Afterward, Drager threatened Lacey when she refused to sign a paper stating that he was of good character. He was eventually transferred to a job outside of the warehouse. In 2006, Lacey sued the state for sexual harassment.
A Lancaster County District Court jury awarded her $60,000, and the court refused to grant the state’s request for a new trial.
Bruning argued to the state high court that the state wasn’t liable for the harassment because it passed the two-part test established by the U.S. Supreme Court in 1998. It says that if employers try to prevent and promptly correct sexual harassment, and that if employees fail to take advantage of any corrective actions taken by the employer, than the employer isn’t liable.
Wright wrote that the state failed the first part because, among other things, the manager of the warehouse didn’t stop the harassment even though he knew of it before Lacey filed her complaint with the corrections’ department.
Also, “only after Drager threatened Lacey was he given a written warning and transferred to another facility,” Wright wrote for the high court.
Bruning failed the second part of the test because, the court ruled, Lacey had not been given a copy of the department’s workplace-harassment policy so could not be expected to know how to file a complaint. Bruning had argued that the six months it took for Lacey to file a complaint with the corrections’ department was too long.
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