Under what circumstances is an individual manager liable for punitive damages for his harassing behavior? A state court of appeals in Massachusetts recently considered that question.

What happened. A woman worked as a care coordinator for Gentle Communications LLC, a firm doing business under the name Gentle Dental, a dentistry practice with offices in numerous locations in the Boston area. She was assigned to Gentle's Brookline office, where, she said, a dentist who managed the office sexually harassed her with unwanted touching and comments about her appearance. In an unrelated move, Gentle transferred her to its Cambridge office. Two days before she was to leave Brookline, she voiced her complaints about the dentist to the Brookline office administrator. As a result, Gentle initiated an investigation pursuant to its sexual harassment policy.

The investigators interviewed employees in the Brookline office, including the alleged harasser, who denied the harassment and said that she had dressed inappropriately for the office. Meanwhile, she became convinced that the investigation focused on her behavior rather than the dentist's. She told the investigators that she couldn't continue to work there in a hostile environment, and resigned after 2 weeks in the Cambridge office.

She sued the dentist and Gentle for sexual harassment and the claim went to a jury trial. The jury found that the dentist did sexually harass her and awarded her damages of $20,000 for lost wages and $20,000 for emotional injury. It also ordered the dentist to pay punitive damages of $65,000. Gentle asked the trial judge to strike the award for lost wages and the dentist asked to strike the award for punitive damages. The judge struck the award for lost wages but turned down the dentist's bid to avoid the punitive damages. She appealed the ruling on the lost wages and the dentist appealed the ruling on the punitive damages.

What the court said. On the lost wages issue, the appellate court noted that she was not fired from Gentle, but rather resigned. Therefore, Gentle's liability for back wages would require her to show that she was constructively discharged--i.e., that intolerable work conditions forced her to leave the job. But she was unable to show a work environment in Cambridge hostile enough to support a finding of constructive discharge. On the issue of punitive damages, the court decided that the dentist's conduct could have been found outrageous in light of her status as a junior employee and his position of responsibility as the dentist in charge of the Brookline office, and that the damages were not excessive. Trinh v. Gentle Communications, Massachusetts Court of Appeals, No. 07-P-441 (3/10/08).

Point to remember: This employer had a sexual harassment policy, but may have failed to adequately train managers on the principles--and potential liability--related to the issue.