Ohio Department of Insurance Explains How Ohio’s Newly-Amended Mini-COBRA Coordinates with Federal Stimulus Act.

Last week, the Ohio Department of Insurance issued guidelines about how employees of small employers (i.e., 20 or fewer employees) who are involuntarily terminated may qualify for continued health insurance that is 65% subsidized by the federal government. Governor Strickland signed legislation which amended Ohio’s mini-COBRA (at Ohio Revised Code §3923.38 and §1751.53) and will affect health insurance policies issued or renewed for small employers after April 1, 2009. Among other changes, the statute extends the continuation period from six months to one year. The Department of Insurance also includes model notices on its website which all small employers and non-ERISA self-insured employers must use to notify laid off and other involuntarily terminated employees of their rights under the American Recovery and Reinvestment Act (“ARRA”) to continue their health insurance with 65% of the cost subsidized by the federal government. Insurers are also required to notify employees receiving continuation coverage since February 17 of their ARRA rights.

Unlike the subsidized COBRA continuation under the ARRA, under Ohio’s mini-COBRA, small employers are not required to front 65% of the insurance premium; rather, the insurance company will handle the former employee’s continuation payments and also receive the tax credits. Also unlike the federal ARRA, employees of small Ohio employers do not get a free “do-over” or extended eligibility period if they failed to elect continuation coverage within the deadlines right after they were terminated.

Insomniacs may read the full Department of Insurance revised guidelines at http://www.ohioinsurance.gov/ConsumServ/COBRAStimulusSmallEmployers.pdf. The DOI’s model form can be accessed at http://www.ohioinsurance.gov/ConsumServ/COBRAContinuationCoverageElectionNotice.doc. Other information about ARRA and Ohio’s mini-COBRA law are available at http://www.ohioinsurance.gov/ConsumServ/COBRA.htm.

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.

Ohio Supreme Court: Ohio Legislature Can Prohibit Local City Residency Requirement for Own Employees.

This morning a divided Ohio Supreme Court ruled that the Ohio General Assembly can prohibit political subdivisions and municipalities – including those organized under home rule charters – from requiring city employees to reside within city limits. Lima v. State, 2009-Ohio-2597. In that case, the challenged state statute -- Ohio Revised Code § 9.481(B)(1) -- states that “no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state.” The cities of Lima and Akron challenged the constitutionality of the statute, which conflicted with local ordinances. However, the Court’s majority upheld the constitutionality of the statute: “R.C. 9.481 was enacted pursuant to Section 34 and that it prevails over conflicting local laws, because no other provision of the Constitution can ‘limit or impair’ laws enacted pursuant to Section 34.”

Insomniacs can read the Court’s full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2597.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: Title VII Does NOT Protect Family and Friends of Charging Parties

This morning, a divided en banc Sixth Circuit reversed a prior panel decision rendered on March 31, 2008 in Thompson v. North American Stainless, LP, and held that Title VII only protects from retaliation individuals who have engaged in protected conduct (i.e., filed a Charge of Discrimination, opposed discrimination or participated in an investigation, etc.) and does NOT protect the family members and friends of individuals who have engaged in protected conduct. (The earlier decision was summarized here on April 10, 2008 at Sixth Circuit: Title VII Protects Family and Friends of Employees who File EEOC Charge).

As previously explained, the employer was alleged to have fired the plaintiff just three weeks after his fiance filed a Charge of Discrimination with the EEOC against the employer. He did not allege that he personally had engaged in any protected conduct, but rather, that his termination was in retaliation for the protected conduct of his fiance. In turn, the employer asserted that he was terminated because of his job performance.

The Court examined the anti-retaliation language in Title VII:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

There was nothing in this language about protecting individuals who did not engage in any protected activity under the Act. The majority found the language clear and unambiguous and elected to defer to Congressional intent to not enlarge the protected class of individuals under the statute.

In essence, plaintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. However, we decline the invitation to rewrite the law.

. . .

In sum, no circuit court of appeals has held that Title VII creates a claim for third-party retaliation in circumstances where the plaintiff has not engaged personally in any protected activity. Although plaintiff and the EEOC argue that the language of § 704(a) is ambiguous and that enforcement of the statutory text will lead to absurd results, we disagree, as do the Third, Fifth, and Eighth Circuits, which have soundly rejected such a cause of action.

However, the court recognized the tension with the policy argument endorsed by the Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), when it stated:

We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.

Nonetheless, the Court distinguished Burlington because the plaintiff in that case had engaged in protected conduct and the question presented to the court was the scope of retaliatory behavior. "We must look to what Congress actually enacted, not what we believe Congress might have passed were it confronted with the facts at bar. For the reasons we have laid out, it was not “absurd” for Congress to limit the class of persons who are entitled to sue to employees who personally opposed a practice, made a charge, assisted, or participated in an investigation. Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary
actor who engaged in protected activity and not by a passive bystander."

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0202p-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. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Ohio Supreme Court: All State Age Discrimination Claims Are Governed by § 4112.14(C)’s Deference to Arbitration Procedures and Cannot Be Re-Litigated.

This morning, the Ohio Supreme Court held in Meyer v. United Parcel Service, Inc., that the prohibition in § 4112.14(C) on pursuing an age discrimination lawsuit when an arbitration remedy is otherwise available to the plaintiff applies to all age discrimination claims brought under Ohio Revised Code Chapter 4112. If this seems complicated, that is because it is.

In Meyer, the plaintiff was fired – for a third time – by UPS after 25 years of employment. Having been reinstated twice before by using the grievance process in the collective bargaining agreement, he again filed a grievance, but it was denied and his discharge was upheld – by a panel of union members and management -- for being due to just cause under the bargaining agreement. He also filed a lawsuit alleging workers compensation retaliation and later amended his complaint to add claims for age discrimination (in that he was replaced by an employee decades younger than himself) under Ohio Revised Code § 4112.99 and public policy. Both claims were tried to a jury and he was awarded $336,208 in back pay, punitive damages and pre-judgment interest and $135,147 in attorney fees and court costs. On appeal, the appellate court ruled that the workers compensation claim should not have been tried to a jury, but rejected the employer’s argument that the §4112.99 age discrimination claim should have been barred by the arbitration prohibition provision in §4112.14(C) and remanded the case to the trial court. The employer appealed to the Supreme Court, which agreed only to resolve the dispute involving the age discrimination claim.

Under Ohio law, plaintiffs may chose between a variety of age discrimination statutes. Section 4112.02(N) provides that an

aggrieved individual may enforce the individual’s rights relative to discrimination on the basis of age as provided for in this section by instituting a civil action, within one hundred eighty days after the alleged unlawful discriminatory practice occurred, in any court with jurisdiction for any legal or equitable relief that will effectuate the individual’s rights. (italics added).

This provision authorizes compensatory and punitive damages for successful plaintiffs. However, a plaintiff who files a lawsuit under §4112.02(N) “is barred, with respect to the practices complained of, from instituting a civil action under section 4112.14 of the Revised Code and from filing a charge with the commission under section 4112.05 of the Revised Code.”

Section 4112.05 permits individuals to file Charges of Discrimination with the Ohio Civil Rights Commission within six months of the alleged discrimination.

Section 4112.14 (formerly codified at § 4101.17) prohibits age discrimination in hiring and firing, permits the filing of a lawsuit by an aggrieved employee or applicant, and provides reinstatement, back pay and attorneys fees to successful plaintiff. However, plaintiffs who file under § 4112.14 may not file a Charge of Discrimination with the Ohio Civil Rights Commission or file a lawsuit under § 4112.02(N). This section also provides that the remedies available “are coexistent with remedies available pursuant to sections 4112.01 to 4112.11 of the Revised Code,” but it seems unlikely that plaintiffs under §4112.14 may obtain compensatory or punitive damages. In addition, when this statute was codified at § 4101.17, the statute of limitations for these age discrimination claims were held to be six years. Since this statute was recodified at § 4112.14, it is no longer clear whether the limitations period for claims brought under § 4112.14 are still six years, but the Supreme Court has refused to confirm this or limit the claims to 180 days as in §4112.02(N). Importantly for the Meyer case, § 4112.14(C) provides that § 4112.14 lawsuits and other lawsuits brought

pursuant to sections 4112.01 to 4112.11 of the Revised Code shall not be available in the case of discharges where the employee has available to the employee the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause. (italics added).

Notably, § 4112.14(C) does not specifically address claims brought under § 4112.99 (but, rather, addresses only claims brought under §§ 4112.01 to 4112.11).

Section 4112.99 provides that “Whoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief.” This is a general statute and must be paired with a more specific statute, like §4112.02(N) or § 4112.14. In any event, this general provision authorizes compensatory and punitive damages regardless of whether it is paired with more specific statutes like § 4112.02(N) or § 4112.14. This is important because there is an argument that §4112.14 does not otherwise authorize compensatory or punitive damages. Plaintiffs who bring an action under § 4112.99 need not specify which more specific statute supports their claims.

In Meyer, the Court held that age discrimination lawsuits may not be brought “where the employee has available to the employee the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause.” Therefore, even if the employee filed a lawsuit within 180 days under §4112.02(N) and even thought that statute does not mention arbitration proceedings, that age discrimination lawsuit is still governed by § 4112.14(C). In addition, even though Meyer’s grievance was not arbitrated by a single arbitrator, the bargaining agreement’s grievance procedure was equivalent to an arbitration and, thus, was covered by § 4112.14(C) arbitration clause.

Friends of the court filed briefs in the Meyer case urging the Court to address other questions posed by §4112.14, such as the length of its limitations period and whether it authorizes compensatory and punitive damages. However, the Court declined to do so. Instead, the reasoning of the Court was that all age discrimination claims brought under §4112.99 are subject to §4112.02(N) and §4112.14 and because §4112.14(C) prohibits age discrimination claims where the plaintiff had arbitration available to him or her, no age discrimination claims can be brought under §4112.99 if an arbitrator – or effective equivalent – upheld the discharge under a just cause standard. This might indicate that plaintiffs should only file claims under §4112.02(N) and not mention § 4112.99, but the syllabus of the Court’s opinion – which states the law of the case – does not limit its holding to §4112.99 claims. Rather, the syllabus refers to all age discrimination claims.

Insomniacs can read the full court opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2463.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 Revives Hostile Workplace Sexual Harassment Claim But Finds Plaintiff Failed to Utilize All Options To Report Supervisor Harassment

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.