A federal appellate court recently upheld a $300,000 jury verdict in favor of an employee who claimed he was the victim of same sex sexual harassment. Smith v. Rock-Tenn Servs., Inc., 6th Cir., No. 15-5534 (2/10/16).
The plaintiff worked as a support technician for a corrugated box company. Plaintiff claimed that on two occasions, his co-worker, Jim Leonard, approached Plaintiff from behind and either slapped or grabbed Plaintiff’s butt. According to Plaintiff, he was actually sore from the grabbing incident. After each of these first two incidents, Plaintiff warned Leonard to keep away and not to touch him. Plaintiff did not report either of these incidents to management when they occurred because he though Leonard would stop after being warned.
Leonard did not stop. While Plaintiff was bent over to load boxes onto a pallet, Leonard came up from behind him, grabbed Plaintiff’s hips and started grinding on him simulating sex. The next workday, Plaintiff brought the incident to the attention of his direct supervisor, who said Leonard had “done … this again.” The plant superintendent called Plaintiff into his office, and Plaintiff reported all of the incidents involving Leonard. The plant superintendent said nothing could be done for ten days until his supervisor, the operations manager, returned from vacation.
After the meeting with the plant superintendent, Plaintiff was sent out back out to work in the same area as Leonard. Over the next several days, Plaintiff was distracted and worried about whether Leonard would do something else. According to Plaintiff, a lack of concentration caused him to make mistakes at work, and on two occasions he got trapped under machines. After about a week, Plaintiff suffered an anxiety attack outside the workplace.
Plaintiff then prepared a letter to company management documenting the incidents with Leonard. The letter alleged that Leonard had engaged in similar conduct towards others, and also that Leonard had threatened one of his victims with a knife. Plaintiff requested sick leave to seek counseling for the sexual harassment he had experienced. Plaintiff wrote, “I don’t feel I can do my job safely and could put others around me at risk because this has consumed my thoughts.”
After receiving Plaintiff’s letter, four senior managers called a meeting with Leonard to ask about Plaintiff’s allegations. Leonard denied Plaintiff’s account and stated that Plaintiff had backed into him. Managers then interviewed other employees who also claimed Leonard had engaged in inappropriate conduct towards them. The company did not get written statements from the other employees or prepare an investigation report. The only record of investigation was one page of barely legible handwritten notes.
Although several members of management recommended Leonard’s dismissal, the general manager suspended Leonard for two days. Leonard testified he was paid during the suspension. The general manager said his decision was based on the last incident between Plaintiff and Leonard, and he did not investigate any past incidents.
Unbeknownst to the general manager, Leonard previously had been suspended for similar conduct. Just two months earlier, Leonard had approached another coworker standing at a urinal from behind and touched his backside. A write-up was placed in Leonard’s file that described the incident as “Horseplay – sexual harassment.” The company’s sexual harassment policy was reviewed, and Leonard was informed that he would be subject to termination of employment for any future complaints.
Plaintiff never returned to work. Leonard was fired about two years later after admitting in a deposition that he had mooned or touched other men in the workplace. According to Leonard, all of his inappropriate conduct was directed towards men.
The Supreme Court has recognized that drawing an inference of discrimination based on sex may be more complicated when an alleged harasser and victim are the same sex. It cautioned that ordinary socializing in the workplace, such as male horseplay, should not be mistaken for discriminatory conditions of employment. In this regard, the Supreme Court wrote, “[c]ommon sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82.
In a same sex harassment case, one can establish an inference of sex based discrimination several ways, including comparing how the alleged harasser treated members of both sexes in a mixed-sex workplace. Plaintiff pursued this method of proof and was able to persuade the jury that Leonard’s unwelcome touching was directed towards men and only men. The company claimed that Leonard’s conduct was mere horseplay. According to the Court, the jury did not unreasonably conclude that pinching and slapping someone on the buttocks and grinding one’s pelvis into another’s behind went beyond horseplay. Similarly, given that all of the incidents of alleged harassment involved the element of physical invasion, the jury’s determination that a hostile or abusive work environment existed was not unreasonable.
The final element of a harassment claim requires there to be a basis to impose liability on the employer. A plaintiff generally must show that an employer knew or should have known of the coworker’s harassment and failed to take prompt and appropriate corrective action. An employer’s response is adequate if it is reasonably calculated to end the harassment.
The Court found that a reasonable jury could conclude that the company’s response was neither prompt nor appropriate in light of what it knew or should have known regarding Leonard’s conduct. The factors contributing to that conclusion were:
1. The company did not initiate an investigation for ten days after the complaint.
2. The company did not separate Plaintiff and Leonard during the period of inaction. While Leonard could have been suspended pending an investigation, he continued to work in close proximity to Plaintiff for a week and a half. This was after Leonard had been warned about similar misconduct just two months earlier.
3. The company did not follow its own policy to prepare a report of investigation, and it barely documented its investigation.
4. At the conclusion of the investigation, no one ever communicated to the general manager, who was ultimately responsible for assessing the discipline, that Leonard previously had been suspended for similar misconduct.
5. Despite Plaintiff’s complaint and evidence that Leonard inappropriately had touched others, Leonard was suspended for just two days, and Leonard himself testified the suspension was with pay.
The company might have avoided liability by promptly addressing Plaintiff’s concern, suspending Leonard pending an investigation, and following through on its own policies and prior disciplinary warnings.