A federal court in Virginia held that an employer is not liable for a female employee’s sexual assault by a male co-worker. Applying the doctrine of respondent superior, the Court held that the male employee was not acting within the scope of his employment when the assault occurred. Clehm v. BAE Sys. Ordnance, Inc. , W.D. Va. No. 16-0012 (July 22, 2016).
The case arose when BAE employee Carla Clehm alleged that a male co-worker “slammed her against the wall, kissed her, and forced his hands into her coverall pockets.” She also alleged that he grabbed her as she was leaving work and suggested they have sex. Clehm brought claims for assault and battery against BAE Systems and her co-worker, along with claims for sex harassment and sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Clehm alleged that BAE systems was “directly and vicariously liable” for the assault under the doctrine of respondeat superior and Virginia common law.
The United States District Court for the Western District of Virginia, Roanoke Division, dismissed the assault and battery claim against BAE Systems. The Court found the complaint devoid of allegations that the assault occurred while the employee was performing his duties. Aside from an assertion that the attack happened while the employee was leaving work, there was nothing linking the assault to BAE Systems. As stated by the Court, “Clehm alleges no facts to suggest any connection between [his] behavior and his function as an employee of BAE beyond his location and the time of the incident.”
Unfortunately for BAE Systems, the dismissal of the assault and battery claim against it was not the end of the case. The Title VII claims remain, but, unlike tort claims, are subject to statutory caps on damages. Moreover, if BAE Systems can establish it acted quickly to respond to the alleges assaults, it should be able to avoid liability.