Sixth Circuit: Dooming Employers With Serial Sexual Harassers and Rumor Mills.

Yesterday, in Hawkins v. Anheuser-Busch, Inc., No., 07-3235 (6th Cir. 2/19/08), a unanimous Sixth Circuit Court reinstated the co-worker sexual harassment claims of two women and affirmed the denial of the similar claims of two others. The women were subjected to lewd comments and offensive touching by the same nefarious individual. The Court imposed a higher standard of responsibility on an employer when faced with a serial harasser: “An employer’s responsibility to prevent future harassment is heightened where it is dealing with a known serial harasser and is therefore on clear notice that the same employee has engaged in inappropriate behavior in the past.”

After the first complaint in 1993, the defendant employers fired the harasser, but he was reinstated following a union grievance arbitration. Apparently thinking that they would never be rid of the harasser following that arbitration, the employer failed to take significant action when they continued to receive complaints from female employees about the harasser’s lewd comments and touching. Rather, the employer generally responded by transferring the women to other production lines. After receiving additional complaints about more harassment and violent retaliation, the employer in July 2003 again fired the harasser, who lost his union grievance in arbitration. The following month, the harasser killed his girlfriend and committed suicide.

The district court granted the employer summary judgment on the harassment claims, but the Court of Appeals reinstated two of the claims because it found (1) sufficient evidence of a hostile work environment and (2) insufficient action by the employer to stop the harassment.

One of the allegations involved the harasser setting fire to one of the women’s car at her home after work. The Court noted that it had “not decided whether off-premises harassment by a co-worker may be considered as part of the severe or pervasive test under Title VII’s sexual harassment provisions” and deferred that issue to the retaliation claims.

The district court refused to consider evidence of the harasser’s conduct towards other women unless they were also directed to or in the presence of the particular plaintiff. The Court, however, held that the court and jury should have considered “evidence of other acts of harassment of which a plaintiff becomes aware during the period his or her employment, even if the other acts were directed at others and occurred outside of the plaintiff’s presence.” The Court believed that such evidence was relevant to show that the plaintiff subjectively found the work environment to be hostile. In other words, mere rumors of sexual harassment constitute evidence of harassment if the plaintiff had ever heard about them.

The degree to which these other acts should be relevant depends on a variety of factors, including the act’s proximity in time to the harassment at issue. “The further back in time the prior at occurred, in other words, the weaker the inference that the act bears a relationship to the current working environment. On the other hand, more weight should be given to acts committed by a serial harasser if the plaintiff knows that the same individual committed offending acts in the past. This is because a serial harasser left free to harass again leaves the impression that acts of harassment are tolerated at the workplace and supports a plaintiff’s claim that the workplace is both objectively and subjectively hostile.”

Even if the plaintiff proves the existence of a hostile work environment, the employer is only liable if it knew or should have known of the harassment yet failed to take prompt and appropriate corrective action. The employer is not liable for “mere negligence, but is liable if its response manifest indifference or unreasonableness in light of the facts the employer knew or should have known.”

With that in mind, the Court found that the employer’s response was unreasonable when a female employee asked to be transferred because the harasser was making her life miserable even though she never provided any details or described the harasser’s behavior. The fact that the harasser had harassed in the past was enough to put the employer on notice that it should investigate further.

The Court also refused to absolve the employer for liability when it transferred each of the complaining employees away from the harasser. “Although some courts have indeed found that simply removing a harasser from a victim’s work environment is sufficient to preclude liability, none of these cited cases involved a serial harasser.” “An employer’s responsibility to prevent future harassment is heightened where it is dealing with a known serial harasser and is therefore on clear notice that the same employee has engaged in inappropriate behavior in the past.” Employers “that take affirmative steps reasonably calculated to prevent and put an end to a pattern of harassment – such as personally counseling harassers, sending them letters emphasizing the company’s policies and the seriousness of the allegations against them, and threatening harassers with serious discipline if future allegations are substantiated – are more likely to be deemed to have responded appropriately.” In one case, an employer avoided liability by formulating an observation network to monitor the harasser, checked with the victim daily to ensure that she had not been further bothered by the harasser and warned the harasser after another complaint that he would be fired if there were any further substantiated complaints. In this case, there was evidence that the employer never counseled the serial harasser after his arbitration reinstatement or even put a letter of warning in his personnel file.

As for the employer’s feeling of helplessness after the arbitration reinstatement, the employer’s “inability to permanently discharge [the harasser] the first time that he sexually harassed an employee . . . does not excuse its failure to take appropriate action in response to subsequent incidents. Even if the [employer’s] determination that it had insufficient evidence to sustain a charge of harassment . . . was reasonable, that does not mean that it had no responsibilities to take other remedial steps to ensure [the harasser] did not harass other women. The remedies of Title VII would be rendered impotent if employers dealing with serial harassers were allowed to throw up their hands after their first effort to deal with the harasser provided unsuccessful. A company faced with a pattern of harassment must both respond appropriately and take increasingly effective steps designed to end the harassment. The failure to do so suggests indifference and permissiveness on the part of management,” although a jury may later sympathize.

The claims of the women who complained of harassment shortly before the harasser was fired were dismissed since the termination of the harasser constituted sufficient remedial action by the employer.

Insomniacs may read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0081p-06.pdf.

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 change or be 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.

Sixth Circuit Affirms $435K Verdict in Retaliatory Termination Case.

In Imwalle v. Reliance Medical Products, Inc., No. 06-4619 (6th Cir. 2/8/08), the plaintiff argued that he was unlawfully terminated by a Swiss conglomerate as President and corporate Chief Operations Officer only three months after he filed a Charge of Discrimination with the EEOC alleging discrimination on account of his age (62) and national origin (American). The jury awarded $185,000 to the plaintiff on the retaliation claims and the Court added another $250,000 for attorney fees, court costs and pre-judgment interest. The Sixth Circuit affirmed on appeal.

The plaintiff had produced evidence that the Swiss company had proposed several cost-cutting measures, including a corporate-level powerpoint presentation by his boss (a Swiss citizen) which suggested the termination of “elderly” employees. He testified that he had been phased out of the corporate decisionmaking process and his boss also suggested in May 2003 that he hoped to retire and volunteer in the community at plaintiff’s age and then asked for the plaintiff’s resignation. The plaintiff also testified that his Swiss boss had complained to him in 1996 about it being the biggest mistake of his career to hire an American manager (i.e., the plaintiff), said he would never repeat that mistake and, in fact, never hired another American manager thereafter. His boss admitted that age discrimination is not illegal in Switzerland and did not understand U.S. employment laws or how they applied to the plaintiff. Nonetheless, the jury rejected the plaintiff’s discrimination claims.

When the plaintiff refused to retire as requested, he hired an attorney and accused the employer of both illegal discrimination and breaching his employment agreement. The employer then agreed to retain him in his current position, but never brought him back into the corporate decisionmaking process. The plaintiff then filed an EEOC Charge alleging age and national origin discrimination. Three months later, his boss met with him and, as described by both the plaintiff and the employer’s human resources director, fired him in January 2004 after reading the following statement:

“‘Dennis, I know that you know [the defendant employer] never committed discrimination in the past, at present, and will not in the future. I therefore canot [sic] understand why you raise such a claim.’ We are not discriminatory, just not.”

The defendant submitted a plausible explanation of poor performance as a non-retaliatory reason why it terminated the plaintiff. For example, the employer contended that it was unhappy with how the plaintiff had managed a particular division and had managed his own division during the brief 2001 recession. The employer also showed that it had pretty much excluded the plaintiff from the corporate decisionmaking process before he made his first allegation of discrimination in May 2003. However, the Court held that the jury could disbelieve the employer’s explanation of poor performance on the grounds that other individuals were more responsible for the corporate failures according to the outside auditors (and yet were not similarly held accountable) and because other managers were not similarly held responsible for the recession. Once a jury rejects the employer’s explanation as false or insufficient, it may infer that discrimination or retaliation was the actual reason or motivation. More importantly, the Court found that the employer’s pre-discharge statement -- denying any unlawful discrimination and wondering how the plaintiff could make such an accusation -- could reasonably be interpreted as evidence that the plaintiff’s EEOC allegations were at the forefront of the employer’s mind when it decided to terminate him.

The Court acknowledged that temporal proximity alone can rarely prove a retaliation claim and the plaintiff lacked direct evidence of retaliation. Indeed, the Court had previously ruled that the passage of four months between protected conduct (i.e., an EEOC Charge) and a discharge created an insufficient inference of retaliation. However, with the passage of only three months, the jury’s disbelief of the employer’s explanation for its conduct and – most importantly -- the employer’s pre-discharge statement, the plaintiff had produced sufficient circumstantial evidence of a retaliatory discharge to support the jury’s verdict. It probably would have been a different result had the employer not protested the discrimination allegations moments before firing the plaintiff.

Insomniacs can read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0066p-06.pdf.

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 change or be 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.