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Arbitration denied on claim of assault at work conference

A split panel of the 8th U.S. Circuit Court of Appeals ruled Aug. 30 that a woman’s claims against a man alleged to have sexually assaulted her at a work conference are not subject to arbitration.

The 8th Circuit’s majority, relying on precedents from several other federal appellate courts, held that the alleged assailant couldn’t rely on the employer’s arbitration agreements, despite their broad language covering “any dispute arising under or related in any way” to the agreement.

But a dissenting judge called the ruling an example of the old adage “bad facts make bad law.”

The plaintiff, Katherine Anderson, was a Colorado-based independent contractor for the American Family Life Insurance Company of Columbus, better known as Aflac. In a lawsuit filed in federal court in 2020, she alleged that, while attending a work conference in St. Louis, another attendee, Jeffrey Hansen, drugged her at a bar and later forcibly entered her hotel room and raped her.

Hansen has denied the claims, arguing in court documents that the relationship was consensual and that the local prosecutor declined to file charges. He has brought counterclaims against Anderson and her husband, Jason, alleging they pursued the suit for financial reasons. According to court records, the Andersons reached a confidential settlement with Aflac prior to the filing of the lawsuit.

As part of his defense, Hansen argued he was a third-party beneficiary of the arbitration agreement Anderson had agreed to as part of her employment with Aflac. Last year, Judge John A. Ross declined to enforce arbitration for most of the claims.

The 8th Circuit’s majority affirmed, basing its ruling on Jones v. Halliburton Co., a 2009 case from the 5th Circuit, and Doe v. Princess Cruise Lines Ltd., from the 11th Circuit in 2011. Both cases involved allegations of sexual assault against co-workers in which the defendants unsuccessfully sought to apply broadly worded arbitration agreements related to employment.

Chief Judge Lavenski R. Smith, writing for the 8th Circuit panel, agreed with those rulings, saying the allegations against Hansen had no “direct relationship” with the arbitration agreements. He noted similar rulings in the 9th Circuit in 2017 and in the 2nd Circuit last year.

“All of the Andersons’ tort claims involve factual allegations about Hansen drugging Katherine Anderson at a bar and forcibly raping her in a hotel room,” he wrote. “Nothing about those allegations arose under or related in any way to the Andersons’ Associate’s Agreements.”

Senior Judge Roger Wollman concurred. But Judge L. Steven Grasz argued that the ruling ignored prior 8th Circuit cases that had enforced arbitration where the disputes “simply touch” matters covered by the arbitration agreement.

“It may be that, as a matter of public policy, the court should deviate from our established standard,” Grasz wrote, pointing to the recent passage of the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 but noting that it is not retroactive. “So, while I sympathize with desire to allow the Andersons to litigate in court, I do not believe this is what the law today allows.”

The Andersons were represented by Justin M. Plaskov in Jester Gibson & Moore in Denver and locally by Amy Collignon Gunn of The Simon Law Firm in St. Louis. In an interview, Plaskov said he was pleased that the court continued a line of precedents that prevents such cases from being forced into arbitration.

“It feels like it would be an injustice to require somebody who’s been sexually assaulted by a co-worker go to a private judge and not be judged by a jury of their peers,” he said. “Something feels just wrong about that.”

Given the passage of the recent federal law, Plaskov said he doubted the full 8th Circuit or the U.S. Supreme Court would be interested in accepting the case for further review.

Liz Carver of Dowd Bennett in St. Louis, an attorney for Hansen, didn’t immediately respond to a request for comment.

The case is Anderson v. Hansen, 21-2719.