On Friday, the Sixth Circuit reversed a summary judgment for a Cleveland area employer on a hostile work environment sexual harassment claim brought by an employee who had resigned four years earlier.
Gallagher v. C.H. Robinson Worldwide, Inc., No. 08-3337 (6th Cir. 5/22/09). During the brief four months of her employment, “she complained to her immediate supervisor about the crude and offensive language and conduct of her co-workers, but her complaints fell on deaf ears. Disgusted, she resigned” in part because of the office celebration leading up to the OSU-Miami national collegiate championship football game on January 2, 2003. The Court found that the plaintiff produced enough evidence that she was subjected to an objectively and subjectively hostile work environment even though much of the offensive conduct and comments were not directed specifically at her, but were facially offensive to most women. Moreover, the company was on notice about the offensive conduct by her co-workers because she complained to her supervisor about it and because her supervisor witnessed and participated in some of it. Nonetheless, the Court agreed that the employer would not be liable for strictly supervisory harassment allegations because there was no tangible job actions and because the plaintiff failed to utilize alternative methods of reporting the alleged harassment by her supervisor based on unsupported suspicions of retaliation.
According to the Court’s opinion, the plaintiff was hired into an inside sales position and worked from a cubicle where employees had very little privacy, could overhear others’ conversations and see their computer monitors. The plaintiff “describes the atmosphere at the Cleveland office of CHR during her four-month tenure as being much like “a guys’ locker room” characterized by unprofessional behavior on the part of both males and females, and an environment that was hostile to women. She testified to the prevalent use of foul language by mostly male coworkers who openly and loudly referred to female customers, truck drivers, coworkers and others as bitches, whores, sluts, dykes and cunts. She testified that male and female co-workers viewed sexually explicit pictures on their computers (although the only incident she could specifically recall was a sexually explicit picture on co-worker Angela Sarris’ computer during the Christmas holidays), and that male coworkers left pornographic magazines lying open on their desks. Gallagher testified that, on several occasions, Starosto brought in nude pictures of his girlfriend in different sexual poses and shared those pictures with several of his male co-workers who occasionally brought in, and shared, pictures of their own with him. She testified that her male co-workers traded sexual jokes and engaged in graphic discussions about their sexual liaisons, fantasies and preferences in her presence on a daily basis. Gallagher also testified that some of the employees drank beer in the office in the afternoon on Fridays, that some male co-workers came in to the office on Saturdays (when branch manager Greg Quast was not there) without a shirt on, that one woman planned her entire wedding at the office, and that another planned her baby shower at the office.”
As for the offensive conduct towards the Plaintiff, she testified that she was once called a “bitch” and another time a co-worker said that the company satisfied two quotas when she was hired: the female quota and the “fat” quota. She further alleged that a co-worker “made several derogatory comments about her weight, and [another employee] once referred to [her] as a “heifer” with “milking udders,” and “moo”ed when she walked by his desk. [She] testified that on one Saturday when she was scheduled to work, three male co-workers came into the office following a session at a gym in the building next door. [One] co-worker, who was wearing only a towel and announced that he was “commando” (meaning that he was wearing no underwear) sat on [a nearby] desk, displaying his whole thigh, and talked with the others about anal sex, their enjoyment of it and how [an employee’s] girlfriend objected to it. On the next business day, [the plaintiff] complained to [her supervisor] about this incident and told him she did not want to work on Saturdays anymore.” She also described how a co-worker would repeatedly physically block her from walking down an aisle until she spoke to him.
The Company “has policies prohibiting discrimination and harassment on the basis of gender, and prohibiting the electronic dissemination of sexually explicit materials through e-mail or the Internet. [The plaintiff] received copies of these policies on her first day of work. The sexual harassment policy requires employees to report complaints of sexual harassment to the legal department, the branch resources manager, or the branch manager. It provides names and phone numbers for the legal department and the branch resources manager. Although [she] signed an acknowledgment stating that she read the policy and agreed to comply with its terms, she testified at deposition that she did not recall reading it before signing it, that she did not keep a copy of it and that she could not recall asking anyone for a copy. The sexual harassment and email and Internet policies are also available on the company’s internal website, along with an anonymous third-party toll-free hotline and an anonymous e-mail service for reporting incidents of discrimination or inappropriate behavior.”
The Company also required employees “to sign certificates stating that they have complied with CHR’s policies during the preceding year – and that if they have any questions about those policies, to contact the Compliance Officer before signing the certificate. Although [she] testifies that the sexually offensive conduct occurred from the beginning of her employment, she signed a compliance certificate on November 25, 2002, but never contacted the Compliance Officer regarding offensive conduct. Rather, [the plaintiff] testified that she complained frequently to [her supervisor] about the unprofessional and sexually offensive workplace conduct to little or no avail. Although [her supervisor] had his own office, he seldom used it; and he usually required [her] to voice her complaints to him at his work station. Often, he would simply yell at the offending employee to stop the conduct because it was bothering [her] which, she says, subjected her only to more ridicule. Although [she] was aware of the anonymous 800 tip line, she refused to use it because some coworkers and [her supervisor] referred to the number as “the waw-waw line” and one co-worker told her not to call the line because the last person who did, lost her job.”
After the plaintiff received a job offer from a prior employer, she claims that she decided to resign on January 3, 2003. “This was the day of the National Championship football game between Ohio State University and the Miami Hurricanes. She testified that a female co-worker brought Jello shots into the office that day and that, in the early afternoon, many coworkers stopped working and started drinking. When Gallagher left, she discovered that she had a flat tire, went back into the office and asked for help changing it. Several drunk male co-workers laughed at her and when they left the building, they got into their trucks and “flipped her off” when passing her by.” She later formally submitted her letter of resignation on January 8 and began her new job on January 13, 2003.
The district court held that the plaintiff did not present enough evidence to support her
prima facie case of sexual harassment or discrimination under state or federal law. “First, the evidence was deemed insufficient to support a finding that the harassment Gallagher experienced was based on her sex. The court found that most of the offensive language and conduct was “indiscriminate;” i.e., was not directed at plaintiff, and was not shown to have occurred
because Gallagher is a woman. Second, the harassing conduct, albeit subjectively offensive to Gallagher, was deemed not to be so objectively severe and pervasive as to have unreasonably interfered with her work performance. Third, the court concluded that [the employer] could not be held liable for offensive conduct engaged in by its employees because Gallagher failed to take advantage of several available avenues for reporting the conduct to upper management, but instead reported it only to her immediate supervisor, who she acknowledged could not handle the situation.” The Court of Appeals reversed.
There were instances in the workplace when Gallagher was repeatedly called a “bitch” by a co-worker in anger, was referred to by another as a “heifer” with “milking udders,” and was taunted by a male co-worker wearing nothing but a towel around his waist when she was the only female in the office. These incidents, in which offensive conduct was directed at Gallagher, reflect sex-discriminatory animus. Yet, the record suggests that much of the other highly offensive conduct was not directed at Gallagher. Among the commonplace offensive occurrences, Gallagher complained of: co-workers’ vulgar descriptions of female customers, associates and even friends as “bitches,” “whores,” “sluts,” “dykes,” and “cunts;” co-workers’ joint ogling and discussions of obscene photographs and pornographic magazines; and co-workers’ explicit conversations about their own sexual practices and strip club exploits. Gallagher could not avoid exposure to these offensive behaviors because they occurred in close proximity to her work station, where she was required to be. Still, the offensive conduct does not appear to have been motivated by Gallagher’s presence or by the fact that she is a woman.”
The District Court relied
Williams v. General Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999), for the proposition that the “based on sex” element makes it incumbent on [the plaintiff] to show that the offensive conduct “occurred because she is a woman.” However, that reliance was misplaced because “in
Williams, the court was addressing a different question, i.e., whether harassing conduct that is not sexually explicit may nonetheless satisfy the “based on sex” requirement. . . . In other words, even non-sexual harassing conduct may be deemed to be based on sex if the plaintiff is otherwise able to show that, but for the fact of her sex, she would not have been the object of the harassment.”
Here, in contrast, most of the complained of harassment just summarized—both conduct directed at Gallagher and indiscriminate conduct—is explicitly sexual and patently degrading of women. The natural effect of exposure to such offensive conduct is embarrassment, humiliation and degradation, irrespective of the harasser’s motivation—especially and all the more so if the captive recipient of the harassment is a woman. In connection with such evidence, it is hardly necessary for Gallagher to otherwise show that the conduct evinces anti-female animus; it is obvious. Hence, even though members of both sexes were exposed to the offensive conduct in the Cleveland office, considering the nature of the patently degrading and anti-female nature of the harassment, it stands to reason that women would suffer, as a result of the exposure,greater disadvantage in the terms and conditions of their employment than men.
“The district court, in evaluating the “based on sex” element, focused too narrowly on the motivation for the harassers’ offensive conduct rather than on the effects of the conduct on the victim-recipient.” As for the “equal opportunity harasser” defense, “a harasser whose offensive conduct afflicts both men and women is not an “equal opportunity curser” if the conduct is more offensive to women than men.”
The Court also found the trial court to have erred in determining “that the harassment was not shown to be so severe and pervasive as to interfere with Gallagher’s job performance.” The Court reiterated that the standard puts “the focus of the objective/subjective inquiry should remain on (1) whether a reasonable person would find the environment objectively hostile, and (2) whether the plaintiff subjectively found the conduct ‘severe or pervasive.’ Further, . . . this evaluation of the work environment must take into account the totality of the circumstances. “[E]ven where individual instances of sexual harassment do not on their own create a hostile environment, the accumulated effect of such incidents may result in a Title VII violation.” While the trial “court emphasized that most of the offensive conduct was not directed” at the plaintiff, which is not an irrelevant consideration, the “court appears to have ignored the fact that, due to the configuration of the Cleveland workplace, it was practically impossible for [the plaintiff] to avoid her co-workers’ offensive conduct. Whether the offensive conduct was intentionally directed specifically at [her] or not, the fact remains that she had no means of escaping her co-workers’ loud insulting language and degrading conversations; she was unavoidably exposed to it. Her complaints to co-workers and her supervisor were not only ignored, but actually tended to exacerbate the harassment.”
Further, the district court erroneously insisted on a showing that the harassment was both subjectively and objectively severe and pervasive; whereas the Williams standard requires a showing that the environment is objectively hostile and the harassment subjectively severe and pervasive. The district court had no trouble concluding there was a triable issue as to whether the harassment was subjectively severe and pervasive. The next question thus should have been whether a reasonable person could have found the environment objectively hostile. Considering the totality of the circumstances as described in Gallagher’s deposition, the conclusion is inescapable that a reasonable person could have found the Cleveland office—permeated with vulgar language, demeaning conversations and images, and palpable anti-female animus—objectively hostile. The district court reached a contrary conclusion by erroneously limiting its consideration only to some instances of abusive conduct, instead of considering the workplace as a whole.
Moreover, the district court also erred in requiring evidence that [the plaintiff's] work performance suffered measurably as a result of the harassment. The court placed inordinate weight on Gallagher’s testimony that she was able to meet her daily and weekly quotas and that her work performance was rated average to above average. In finding that [the plaintiff] failed to present any evidence that the harassment unreasonably interfered with her work, the court ignored her testimony that, from day one in the Cleveland office, she was “horrified” by the loudness, constant swearing and vulgar language, and that she “left there every day crying.” Considering Gallagher’s description of the offensive conduct to which she was exposed, her reaction can hardly be dismissed as implausible, unreasonable, exaggerated or hypersensitive. Nor is it improbable that the hostility and antagonism she experienced rendered her work more difficult. In Williams, the court made it clear that a plaintiff need not prove a tangible decline in her work productivity; only “that the harassment made it more difficult to do the job.” Based on the instant record, a reasonable jury could certainly find that the complained of harassment made it more difficult for Gallagher to do her job.
The Court also disagreed that the employer could not be held liable for the harassment. “Evaluating [the employer’s] liability for the offensive environment in the Cleveland office thus depends fundamentally on whether [her] hostile work
environment claims are based on co-worker harassment or supervisor harassment. [She] insists the answer is “both,” and the record supports her position.” The Plaintiff’s immediate supervisor “was present during and witnessed much of the conduct, participated in some of it, received reports from [the plaintiff] of incidents he did not witness, and through his inaction during the four-month period, ostensibly condoned it all. In other words, both co-workers and supervisor were clearly complicit in creating and maintaining the hostile work environment. This is significant.”
Notably, the district court’s analysis of employer liability appears to have been based on the implicit assumption that the case involved only supervisor harassment. If this case were strictly about supervisor harassment, the district court’s analysis would arguably be correct. Applying the law summarized above in
Petrosino, it is apparent that [the supervisor’s] participation in the harassment did not ripen into any tangible employment action against [the plaintiff], such as firing or demotion.” Moreover, the plaintiff did “not challenge the facial adequacy of [the employer’s] sexual harassment policy, but maintains she reasonably tried to take advantage of it by reporting her complaints to her office manager . . . . She contends the lack of resulting corrective action demonstrates the ineffectiveness of the policy.” Of “the many means and opportunities available to [her], she employed only one. Limiting her reports of harassment to [her supervisor] alone was clearly unreasonable, the district court found, because it had become clear to [her] in her first weeks on the job that [her supervisor] was part of the problem, not the solution.
Indeed, the policy expressly provides alternative avenues for reporting harassment where an employee’s supervisor is involved in the harassment. Yet, despite her knowledge of the alternatives, [the plaintiff] did not report her concerns to any other person in management. As the district court put it, “she chose, instead, to deal with the problem by leaving the company for another, higher-paying job with her previous employer.” The plaintiff’s “decision to leave her employment with [the defendant employer] appears clearly to have been reasonable. However, her failure to take reasonable steps to ensure her employer was actually aware of the harassment and had a chance to correct it before she left undercuts her present effort to impose liability on [the employer] based on supervisory complicity in the harassment.” The Court agreed with this analysis and rejected the plaintiff’s subjective and unwarranted suspicions that she would be retaliated against if she utilized other alternatives of reporting the harassment. “An employee’s subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee’s duty under
Ellerth to alert the employer to the allegedly hostile environment.”
Nonetheless, even if her claim for supervisory harassment failed, an “employer is vicariously liable for co-worker harassment of which it knew or should have known if it failed to take appropriate remedial action, i.e., if its response manifests indifference or unreasonableness.” In this case, it was undisputed that the plaintiff reported much of the offensive conduct by her co-workers and the supervisor even witnessed and participated in some of it. “The facts substantiate a finding the [supervisor] knew or should have known of the offensive conduct and of [plaintiff’s] objection to it. Yet, in the absence of evidence that this knowledge extended higher up in the chain of management, the question is whether [the supervisor’s] knowledge is properly imputed to [the employer].. As explained above, [his] knowledge alone is insufficient to warrant imposing liability on [the employer] for supervisor harassment, but liability for co-worker harassment is different.”
An employer is deemed to have notice of harassment reported to any supervisor or department head who has been authorized—or is reasonably believed by a
complaining employee to have been authorized—to receive and respond to or forward such complaints to management.
The parties disagreed about the effectiveness and reasonableness of the supervisor’s reaction to the plaintiff’s complaints about her co-workers. “Because a reasonable jury could find that [the employer] knew or should have known of the sexual harassment [she] experienced and yet responded with manifest indifference or unreasonably, the district court’s conclusion that the premises for employer liability are lacking is erroneous.”
Insomniacs can read the full opinion at http://
www.ca6.uscourts.gov/opinions.pdf/09a0184p-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.
