According to the Court’s opinion, the defendant employer operated
with mostly temporary employees assigned from staffing companies. It only provided employee handbooks to its
regular employees. One of its
supervisors had the authority to terminate temporary employees and was
regularly harassing female subordinates with lewd comments and physical
contact. Not only did the employees
object to his conduct, a male co-worker also requested that he stop it. Only one of the employees ever complained to
management and only did so anonymously. The subsequent investigation was initially limited
to interviewing the harassing supervisor. All of the plaintiffs were ultimately fired
shortly after the anonymous complaint was made. Two
of them were fired for purported attendance issues and two for making a
mistake. The harassing manager was
found to have been the decisionmaker or to have played a role in all of their
terminations. The employees denied
having attendance issues and evidence was presented that other employees had
made mistakes without being fired.
The employer had argued that the plaintiffs could not prove retaliation
because they could not show that they engaged in any protected conduct before
their termination. Only one of them had
made an anonymous complaint to management prior to her termination. The employer contended that the employees’
protest to the harassing supervisor himself and resistance to his harassment was
not protected conduct. Surprisingly, two
other court decisions agreed with this argument, with one of them noting that
resistance to harassment could not be protected conduct or every harassment
claim would automatically constitute a retaliation claim as well. The Sixth Circuit rejected this argument
because Title VII’s opposition clause in the anti-retaliation provision prohibits
retaliation against any employee because the employee opposed an unlawful
employment practice. The Supreme Court
has previously noted that “oppose” means to resist. Therefore, the Sixth Circuit has found
protected opposition with informal complaints of discrimination:
[A] demand that a supervisor cease his/her harassing conduct
constitutes protected activity covered by Title VII. Sexual harassment is
without question an “unlawful employment practice.” If an employee demands that
his/her supervisor stop engaging in this unlawful practice—i.e., resists or
confronts the supervisor’s unlawful harassment—the
opposition clause’s broad language confers protection to this conduct. Importantly,
the language of the opposition clause does not specify to whom protected activity
must be directed.
Because the supervisor knew of their protests of his
behavior and played a role in their terminations, the Court had no difficulty
finding sufficient evidence of but-for causation in their retaliation claims. Where he merely played a role in two
plaintiffs’ termination, the decisionmaker relied upon his evaluation of their
work and gave inconsistent explanations about why she held them to a higher
standard than other employees. There
was also a strong temporal proximity between the time of the protected conduct
and the retaliatory terminations. In
addition, the EEOC was able to provide evidence that the reasons given for the
terminations were pretextual because the harassing supervisor had told one of
the employees that he would disguise her tardiness (instead of discharging
her), one of the employees had never been accused of attendance issues before
he was fired shortly after being interviewed during the harassment investigation,
and two of the employees could show that other employees had make similar
mistakes and not been fired.
The Court also refused to consider the employer’s Ellerth affirmative defense because each
of the plaintiffs suffered a tangible employment action when they were fired.
The Court
found that the employer could be held liable for punitive damages. The Court rejected the employer’s argument
that it could not be liable since sexual harassment was outside the scope of
the supervisor’s employment because the tangible employment action -- firing
the employees -- was within the supervisor’s authority. The Court also rejected the employer’s
defense that management could not have acted with deliberate disregard of
federal law since management did not previously know about the harassment
because the supervisor clearly knew about the harassment. “The
EEOC only had to show that the “individual[] perpetrating the discrimination
[or, here, retaliation]” acted with malice or reckless disregard for federally
protected rights.”
Further, the
Court rejected the employer’s good faith defense because it did not undertake efforts
to prevent and remedy the harassment by, for instance, providing an employee
handbook or harassment policy to the temporary employees. It also had initially only
interviewed the supervisor after the anonymous complaint was made and did not
interview all of the potential witnesses identified. “In assessing
whether an employer engaged in good-faith efforts to comply with Title VII, we
focus “both on whether the defendant employer had a written sexual harassment
policy and whether the employer effectively publicized and enforced its policy.’” Finally, the jury was entitled to infer a
lack of good faith from the fact that three of the plaintiffs were terminated
during the employer’s investigation of the anonymous complaint.
The jury instruction on punitive damages omitted language
about the employer’s good faith defense.
The Court found that the employer had waived its objection to this
omission by failing to argue about the missing language during the charge
conference even though the employer had submitted a proposed jury instruction
with the missing language. The Court
also rejected the employer’s argument that it constituted plain error for the jury
instruction to omit the employer’s good faith defense because the employer did
not make an argument about its good faith during its closing arguments to the
jury.
The Court also rejected challenges to the jury instruction
use of “because of” instead of “but for” in the retaliation instruction.
The EEOC press release
about its victory mentions that the lawsuit was first filed in September 2010
and the jury reached its verdict in May 2013.
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.
