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The 2nd U.S. Circuit Court of Appeals, while recognizing the “special circumstances” of the case, recently ruled that the “work environment” can stretch to include a hotel room in a foreign country and that even off-duty conduct of an employee can subject an employer to liability for co-worker harassment. Ferris v. Delta Air Lines Inc., 277 F.3d 128 (2d Cir. 12/21/01) (Van Graafeiland, Newman, and Leval, Circuit Judges). Appellant Penny Ferris was a Delta flight attendant who was raped in 1998 by a co-flight attendant in a Rome hotel room, where the Delta crew was assigned to stay pending the crew’s flight back to New York City. In the normal course of business, Delta had reserved and paid for a block of rooms at the hotel and had arranged for the crew’s travel to and from the hotel and the airport. After she was raped, Ferris learned that over the course of five years, her attacker had raped and/or been hostile toward other flight attendants while abroad. Other victims had made reports to Delta supervisors but Delta took no action against the rapist. The district court rejected Ferris’ sexual harassment claims because the hotel room was not a “work environment” within the ambit of Title VII and because appellant’s fear of encountering her attacker on subsequent Delta flights was too “speculative.” The district court also rejected appellant’s state tort claims, including those for negligent retention and supervision, because the attacker’s actions did not occur on Delta’s premises. While conceding that it was a close call, the 2nd Circuit held that the rape did in fact occur in a work environment. Delta booked and paid for the block of hotel rooms that the flight crew used, and arranged for transportation to and from the hotel. Under the circumstances here, it was “likely” that the crew members would band together during the foreign layover. Moreover, the 2nd Circuit ruled that Ferris did state a cause of action for sexual harassment. It rejected Delta’s argument that off-duty, non-work-related encounters could not serve as notice to it of the harassment suffered by Ferris, finding that there was a sufficient basis to impute responsibility on Delta because Delta supervisors were notified of the previous rapes. Delta had a duty to warn, regardless of the fact that Ferris herself was not previously abused. The court found that appellant’s trepidation of further encounters with her attacker was not too speculative to state a claim. Finally, the 2nd Circuit affirmed the district court’s dismissal of appellant’s negligent retention and supervision claims, although not for the reasons relied on by the district court. Rather, the court ruled that New York’s Workers’ Compensation statute served as the exclusive remedy for an “injured” employee whose claim was based on a common-law negligence allegation of co-worker harassment. For plaintiff/appellant, Berenbaum Menker Ben-Asher & Fishel, by Allegra Fishel, in New York. For defendant/appellee, Seyfarth Shaw, by Gilmore F. Dickmann Jr., in San Francisco.

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