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BLOG / 11.30.18 /Jack Malley

Ninth Circuit Finds Employer Not Liable For Employee’s Alleged Groping Of Co-Worker

In Robello v. Mandalay Corp. the plaintiff, Deborah Robello, a bartender employed by the Mandalay Bay Resort and Casino in Las Vegas, alleged that a male bartender, Jesse Estrada, groped her breast while Robello handed him several bottles of wine. Estrada denied Robello’s allegation. Robello subsequently sued the casino for creating and tolerating a hostile work environment based on sexual harassment. The U.S. District Court for the District of Nevada dismissed Robello’s claim against the casino and she appealed.

By a decision dated October 26, 2018, the employee-friendly Ninth Circuit affirmed and ruled in favor of the employer. The Court held that the casino was not liable because it took prompt corrective action by immediately suspending Estrada, conducting a formal investigation, terminating Estrada, and, after later reinstating Estrada, minimizing contact between Robello and Estrada by ensuring that they would not work at the same location. The reinstatement occurred after a video of the incident taken by the casino’s security camera system did not conclusively establish either party’s story.

The Ninth Circuit’s decision reinforces the reasons why employers must have a current and thorough sexual harassment policy in place. First, and most importantly, a good policy will set forth procedures that will stop sexual harassment in its tracks. Second, a good policy will include mechanisms for the reporting of allegations, timely investigations and prompt corrective action that, if followed, will provide the employer with a good defense to a co-worker harassment claim.