According to the Court’s opinion, the plaintiff received the
employer’s employee handbook and sexual harassment policy during his
orientation shortly after he was hired in August 2010. The employer’s policy encouraged employees to
attempt to work matters out between themselves before involving
management. In December of 2011,
plaintiff observed the harasser grab a co-worker’s buttocks. A few months
later, he then slapped plaintiff’s bottom when he walked by, causing the plaintiff
to point at him and tell him to keep his hands off.
The following week, the harasser grabbed the
plaintiff’s bottom so hard that it hurt, which resulted in the plaintiff
grabbing his harm and telling him that if he didn’t stop, someone would get
hurt. Plaintiff did not report either
incident to management. In early June,
while the plaintiff was bent over picking up boxes, the harasser hunched over
him and engaged in grinding. This resulted
in the plaintiff grabbing him by the throat and sharing a few choice
words. The harasser later apologized,
but the plaintiff was so upset that he went home.
This final incident was brought to the attention of a few
co-workers, one of whom told the plant superintendent. The plaintiff told his female supervisor on
the following Monday and learned that this had not been an isolated incident. The plant superintendent questioned the plaintiff
about it that Monday and said that nothing would be done until the operations
manager returned from vacation on Friday.
The plaintiff was sent back to the same work area as the harasser. By this time, the plaintiff was so upset that he kept making mistakes in his work. When he and the harasser were sent together for a hearing test, the plaintiff had become very angry. Even though there were no other incidents with the harasser, the plaintiff suffered an anxiety attack within 10 days of the last incident. He then requested medical leave to seek counselling from the emotional distress he suffered from the unaddressed harassment. His request was granted.
Upon receiving the request for medical leave – 10 days after
the incident had been reported, the operations manager spoke with a few
employees and supervisors about the incident, but no interview notes or witness
statements were taken. The entire
investigation was reflected on a single page of handwritten notes. The harasser claimed that the plaintiff had backed
into him and there were no other eyewitnesses.
There were some indications that similar incidents had happened before,
but no follow up interviews were conducted.
Although the superintendent, supervisor and human resources recommended
that the harasser be terminated, the employer’s general manager only suspended
him for two days. This was supposedly
without pay, but the harasser testified that he was paid. The General Manager later admitted that he
had not sought or considered the harasser’s prior disciplinary history or
similar incidents.
In fact, the
superintendent and operations manager involved in this investigation were aware
that the harasser had been warned in writing in March 2011 not to touch other
employees or he would be terminated. He had touched a male co-worker standing
at a urinal and was written up for harassment-horseplay. Again, no witness statements had been
taken. The harassment policy had been reviewed
with the harasser and the documentation had been placed in his personnel file. Human
Resources had also been involved in an undocumented similar incident. Yet,
no one told the General Manager, who was in charge of disciplinary actions.
The plaintiff never returned to work and spent the next 18
months taking medication for anxiety and insomnia. After exhausting his short-term disability,
he was diagnosed with PTSD. The harasser
was not fired until July 2014 after he admitted during his deposition to
mooning and/or touching other men in the workplace. All of his misconduct had been directed
against men. There was apparently no
evidence that he had ever been inappropriate with a female employee.
While the
employer attempted to argue that the harasser’s conduct had simply been
horseplay, the plaintiff convinced the jury that it was harassment by showing
that only men were exposed to offensive touching. “[T]he jury apparently found that
pinching and slapping someone on the buttocks or grinding one’s pelvis into
another’s behind goes far beyond horseplay.”
The Court also rejected the employer’s argument that the plaintiff
essentially worked in a gender segregated department (rather than a mixed-sex
environment) because 30% of the workforce were women (including the plaintiff’s
supervisor) and women passed through the department regularly. The Court also refused to require the
plaintiff to prove more than the absence of offensive conduct towards women in
order to prevail on a same-sex harassment claim.
The Court also rejected the employer’s arguments that the
harasser’s three interactions with the plaintiff were not severe or pervasive
enough to constitute a hostile work environment because the plaintiff’s case
could also rely on other incidents by the harasser which the plaintiff observed
or learned about during his employment.
In addition, offensive touching is considered to be more severe than
verbal insults or comments. “’[W]hether
harassment was so severe and pervasive as to constitute a hostile work
environment to be ‘quintessentially a question of fact.’” In particular, the Court found that the jury’s
conclusion was not unreasonable based on the evidence presented.
To impose liability on an employer for the harassing conduct
of a plaintiff’s co-worker, a “plaintiff must show that the employer’s response
to the plaintiff’s complaints ‘manifest[ed] indifference or unreasonableness in
light of the facts the employer knew or should have known.’” . . . A plaintiff must therefore
show that the employer “knew or should have known of the harassment” and
“failed to take prompt and appropriate corrective action.” “Generally, a response is adequate if it is
reasonably calculated to end the harassment.” . . . Appropriate steps “may
include promptly initiating an investigation.”
. . . Even
separating the harasser and victim immediately may not be enough without further
action on the employer’s part.
Although the
employer argued that the steps it took were clearly prompt and appropriate
under the circumstances, the employer “fails to grasp that what it
failed to do is just as important.”
In this case, a reasonable jury could have concluded that
Defendant’s total inaction for ten days, where Defendant knew that Leonard had
touched Plaintiff, and had told Leonard that further complaints would result in
termination, was unreasonable. Defendant
did not separate the two men, suspend Leonard pending an investigation, or
initiate its investigation in a timely manner; a reasonable jury could find
that the failure to take any of these steps or others rendered its response
neither prompt nor appropriate in light of what it knew or should have known
regarding Leonard’s prior misconduct.
NOTICE: This summary is designed merely to inform and alert you
of recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
