Employment Law Daily Butcher showed that sexual taunting, touching was directed only at males, reviving sex harassment claim
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Tuesday, August 7, 2018

Butcher showed that sexual taunting, touching was directed only at males, reviving sex harassment claim

By Joy P. Waltemath, J.D.

Because the Seventh Circuit found that “ample” trial evidence presented by a butcher who claimed sexual harassment did show that the genital grabbing, buttock groping, and sex pantomiming he experienced from male coworkers behind the meat counter did not extend to female employees in the small store’s mixed-sex workplace, it was reasonable for the jury to have concluded that the butcher was subjected to a Title VII hostile work environment based on sex. The appeals court also affirmed the jury’s favorable decision on the butcher’s Section 1981 retaliation claim; although the store argued that no retaliation could have occurred because there was no evidence his coworkers even knew he filed the EEOC race bias charge, the court found the store forfeited this argument by focusing in post-trial motions only on whether the butcher’s decision to quit amounted to a constructive discharge. Finally, the store failed to raise its objection at trial that a terrorism reference made by the butcher’s counsel in closing arguments was unfairly prejudicial—it complained only that counsel had appealed to “social science research … not in the record”—thus, not only was its argument forfeited, but in any event the comment would not have warranted a new trial (Smith v. Rosebud Farms, Inc., dba Rosebud Farmstand, August 2, 2018, Barrett, A.).

Butcher tormented. The appeals court noted the following trial evidence: Beginning within the first three weeks of the four years the butcher worked for the small Southside Chicago grocery store, male coworkers behind the meat counter began harassing him by grabbing his genitals and buttocks—something they did consistently, including groping him, grabbing him, reaching down his pants, pantomiming oral and anal sex, both on him and on each other. His supervisor not only knew about it, he “even participated once or twice.” (They also targeted him for his race, telling him to go back to Africa and using racial slurs.) He said he complained multiple times to no avail and finally filed an EEOC charge alleging both sexual harassment and race discrimination.

Retaliation. When his supervisor got notice of the charges, he told the meat-counter employees to stop “goofing off” and quit the “horseplay.” They then began banging their meat cleavers menacingly at him and pointing knives at him when they walked by with meat trays. His car—parked in a gated, employee-only lot—had its tires slashed and windshield cracked, after which he quit. Four of his claims went to trial, and he was successful on all of them: Title VII sex discrimination; Section 1981 race discrimination; retaliation under both statutes; and a state law claim against two individuals. The jury awarded him over $2.4M, which was reduced to $470K, but the district court also awarded him equitable relief of almost $70K in back pay and close to $20K in prejudgment interest. The store appealed the Title VII sexual harassment claim and the Section 1981 race-based retaliation claim; it also sought a new trial.

Sex-based sexual harassment? On appeal, the store contended that the butcher did not prove that its employees harassed him because he was male, although it did not dispute that its employees severely and pervasively harassed him, calling it only “sexual horseplay.” Among other precedent, it cited the Seventh Circuit’s 2016 decision in Lord v. High Voltage Software, Inc., that a male employee slapping the buttocks and grabbing a male coworker between the legs, without more, was not discrimination “based on sex.” The Seventh Circuit affirmed its precedent that the unwanted sexual behavior—including the touching of genitals and buttocks—is not necessarily actionable under Title VII, stressing an important boundary line: “Title VII is an anti-discrimination statute, not an anti-harassment statute.”

Only men treated this way. But here the butcher had offered direct comparative evidence that only men, and not women, experienced the kind of treatment that he did at the store. Ample testimony—from both the butcher and other witnesses—established that “only men were groped, taunted, and otherwise tormented. Witnesses recounted the numerous times they saw men grabbing the genitals and buttocks of other men. No witness recalled seeing female Rosebud employees subjected to the same treatment.” As such, the jury was free to conclude that these men discriminated against him on the basis of sex.

Not an all-male environment. If the butcher had worked in an all-male environment, the fact that only men were touched and groped would not raise an inference of sex discrimination, agreed the court—but he did not. The store was a mixed-sex workplace where men and women interacted daily, even behind the meat counter. Thus, it would not overturn the jury’s finding.

Other arguments forfeited. The store also claimed that no rational jury could have found Section 1981 race retaliation, given that it said there was no evidence coworkers had known about the butcher’s EEOC charge—and thus, they could not have retaliated against him because of it. But this challenge was not preserved for appeal, noted the court; the store’s post-trial motions only addressed whether the butcher’s decision to quit was a constructive discharge.

Similarly, the store contended that it was entitled to a new trial because of inflammatory, prejudicial statements the butcher’s counsel made during closing arguments, referencing “terrorism” and suggesting the store also “breeds anarchy.” But the store never raised this objection during closing argument; it only objected on the grounds that the statements were beyond the scope and appealed to “social science research” not in the record. That did not preserve the unfair prejudice objection on appeal, although the Seventh Circuit noted that the “bizarre terrorism analogy” would “certainly not have been reason for the district court to set aside the jury’s verdict and start over.”

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