By: dmc-admin//January 21, 2002//
“[W]e cannot conclude that an employer is subject to what amounts to strict liability for every second incident of harassment committed by an employee, especially when the first incident was far less serious than the second. Had Bester’s acts toward Terry been more severe-and as a result he had merely been reassigned to another duty station-we would be faced with a different situation. Or were there actual nonhearsay complaints that he harassed several other women, and that despite complaints he had not been disciplined, the situation would also be different. But what we have here is, in effect, one prior incident which may or may not rise to the level of actionable harassment and which was not ignored by the employer, followed by a second incident which resulted in the de facto discharge of the harasser. To say that the employer must be held liable in the second incident would be to impose strict liability on an employer any time an employee commits two acts of harassment. It would be a two- strikes-and-you’re-out rule. To be safe from liability, an employer would always have to discharge a person accused of any kind of harassment because no employer can predict with certainty, any more than any judge sentencing a criminal defendant can predict with certainty, that an offender will not offend again.”
Affirmed.
Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Evans, J.