Yesterday, in Hawkins v. Anheuser-Busch, Inc., No., 07-3235 (6th Cir. 2/19/08), a unanimous Sixth Circuit Court reinstated the co-worker retaliation claims of one plaintiff and affirmed the denial of a similar claims by a non-complaining witness to the harassment. This case is significant because it is the first time the Sixth Circuit has recognized an employer's liability for retaliation by a co-worker. In addition, even though the most significant retaliatory acts took place after working hours and off the company's property, the employer was faulted for not conducting a more thorough investigation.
In Hawkins, four women complained of sexual harassment by the same nefarious serial sexual harasser, who then allegedly retaliated against one of them and a witness by, among other things, slashing their tires at their home and in the company parking lot, scratching their cars, threatening to kill them, setting the car on fire of one of the women, and, burning down the home of the non-complaining witness. After the first sexual harassment complaint in 1993, the defendant employers fired the harasser, but he was reinstated following a union grievance arbitration. Apparently thinking that it 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 Court noted that it had never previously recognized a claim for co-worker retaliation under Title VII. Indeed, the District Court had dismissed the retaliation claims on summary judgment on that basis. However, the Court recognized that a majority of the federal circuit courts to have addressed the issue determined that “Title VII protects against co-worker retaliatory harassment that is known to but not restrained by the employer.” Therefore, an employer can be liable for co-worker retaliation” if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known.”
In particular, the Sixth Circuit held that “an employer will be liable for the co-worker’s actions if:
(1) the co-worker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or support a charge of discrimination;
(2) supervisors or members of management have actual or constructive knowledge of the co-worker’s retaliatory behavior; AND
(3) supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff’s complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances."
The Court had no difficulty in finding liability in one case. In that situation, the employer never conducted an investigation because the retaliation (i.e., torching the victim’s car in driveway of her home) took place off company property and after working hours, but the employer nonetheless suspected the allegation of violence was true. The woman’s manager even told the Licking County Prosecutor's Office during the police investigation that the harasser had insinuated to him that he started the fire and that he was personally afraid of him and would not participate in the investigation. Another senior member of management had heard rumors that the harasser set the fire and that the victim believed the fire was set by the harasser. More importantly, the harasser had admitted to three co-workers that he set the fire. Although the employer was unaware of the admissions, this evidence created an inference “that [the harasser’s] threatening behavior and violent acts of retaliation were common knowledge to both coworkers and supervisors . . . and might have been substantiated by a more complete investigation.” “The [employer] never bothered to investigate the incident, monitor [the harasser], or create a safe environment for harassment complaints. A jury could find that, given what management knew about the fire, the [employer] had an obligation to investigate the incident.” This is one of the only cases by a federal court to fault an employer for not conducting a more complete investigation.
The Court affirmed the dismissal of the retaliation claim by the non-complaining witness even though the harasser had poured gasoline down her basement and set fire to her house after he was fired. The Court found the employer’s response to her concerns of retaliation were sufficient: The employer fired the harasser, coordinated with law enforcement to have the harasser monitored, hired a security guard to follow him and offered the victim the protection of a security guard – which she refused.
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.
