Employer Inaction After a Coworker's Assault and Stalking

Attorney Answer

File your agency charge first. The federal and state clocks on a workplace harassment claim are short, they started running with the incidents you describe, and everything else on this list will keep. Nothing else you do matters if the deadline passes.

The federal prohibition is 42 U.S.C. § 2000e-2, Title VII's unlawful employment practice provision, which is the basis for hostile work environment and harassment claims. Know its scope before you rely on it: it reaches harassment because of a protected characteristic — race, color, religion, sex, or national origin. If this man targeted you for reasons connected to one of those, you have a Title VII case. If the conduct was purely personal, the federal claim is harder, and your strength lies elsewhere.

Two adjacent provisions matter and are not in § 2000e-2. Retaliation is prohibited separately by 42 U.S.C. § 2000e-3, and on your facts — you reported him, he found out, he became aggressive, and the company then promoted him — retaliation may be the stronger theory of the two. The EEOC charge-filing deadline is in 42 U.S.C. § 2000e-5(e)(1): 180 days, extended to 300 days in a deferral state.

The state parallel is the New Mexico Human Rights Act, NMSA 1978 § 28-1-7, which prohibits discriminatory practices including harassment affecting the terms and conditions of employment. There is a procedural trap in it that people miss: a Human Rights Act claim must be exhausted through the Human Rights Bureau before you can sue, and it has its own filing deadline, set out in NMSA 1978 § 28-1-10. Confirm that deadline with the Bureau directly and do not rely on a number you read anywhere, including here.

One case tells you what you will actually have to prove, and it is not encouraging — which is why you should read it now rather than later. In Macias v. Southwest Cheese Co., 181 F. Supp. 3d 883 (D.N.M. 2016), a federal district court in New Mexico explained that to hold an employer directly liable in negligence for a coworker's harassment, "an employee must present enough evidence for a reasonable jury to find that the employer knew or should have known about the harassment but failed to stop it," and that actual knowledge "generally arises when the plaintiff has reported harassment to management-level employees." The employer won partial summary judgment there, because the plaintiff had no admissible evidence of the employer's actual or constructive knowledge. That decision is not binding on every court, but the lesson is exact: your reports to HR are the evidence, and if they exist only as conversations nobody wrote down, you have a problem you can still fix this week.

What you can do

1. This week, file a charge with the EEOC and ask them to dual-file it with the New Mexico Human Rights Bureau, or file with the Bureau directly. Do this before anything else on this list. 2. Recreate the record of your reports. Send HR a dated written summary of every report you made — when, to whom, what you said, what they did. Send it by email so there is a timestamp. Macias is about exactly this gap. 3. Request copies of everything already in your personnel file and everything you previously submitted to HR, in writing. 4. Preserve the physical evidence: the police report number, medical records from the strangulation, photographs of injuries, the windshield repair invoice, and any texts or messages from him. 5. Petition for an order of protection against him personally. That is separate from your job and moves much faster than any employment claim. 6. Ask your employer, in writing, for specific interim measures — no reporting relationship to him, separate shifts, separate work areas. Keep the reply, or keep the record of the silence. 7. If you were injured at work, ask about a workers' compensation claim for the assault injuries. That is a separate track with its own deadline. 8. Do not resign before you have spoken with an employment lawyer. Quitting changes the shape of the claim, sometimes badly.

⏱ Time limits apply. The EEOC charge deadline is set by 42 U.S.C. § 2000e-5(e)(1) at 180 days, extended to 300 days in a deferral state. A New Mexico Human Rights Act claim under NMSA 1978 § 28-1-7 must first be exhausted through the Human Rights Bureau and carries its own deadline in NMSA 1978 § 28-1-10, which you should confirm with the Bureau. Which clock governs, and when it began, depends on the dates of each incident and of each report you made.