In Ventura v. ABM Industries, the employer was a janitorial service company that, according to the lawsuit, had a group of managers who drank on the job, touching and sexually harassing their female subordinates. Finding that that the defendants had engaged in threats of violence, the jury awarded the plaintiffs compensatory damages, plus a $25,000 civil penalty and $550,000 in legal fees.
What’s unusual about this case is that, instead of pursuing a sexual harassment claim, the plaintiff, sued under a California statute prohibiting hate crimes against protected categories such as sex. My guess is that the statute of limitations had passed for a traditional sexual harassment claim. The court rejected the defense argument that this statute does not apply in the workplace. The decision included a statement about the ratification of employee conduct that has significance for every employer:
“An employer may be liable for an employee’s act where the employer either authorized the tortuous act or subsequently ratified an originally unauthorized tort. The failure to discharge an employee who has committed misconduct may be evidence of ratification. The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort such as assault or battery. Whether an employer has ratified an employee’s conduct is generally a factual question.”
The bottom line: An employer who faces evidence of wrongful employee conduct must do everything possible to discipline the wrongdoer (including termination, if warranted) or risk being accused of “ratifying” the misconduct. If the Ventura case had been brought as a traditional sexual harassment claim, the company would have automatically been deemed to have ratified the misbehavior because the perpetrators involved were managers.
