Employment Law Daily Earlier complaint of being ‘molested’ by supervisor may bar Faragher harassment defense
Tuesday, July 19, 2016

Earlier complaint of being ‘molested’ by supervisor may bar Faragher harassment defense

By Marjorie Johnson, J.D. A plant superintendent’s failure to report a male worker’s complaint of being "molested" and "inappropriately touched" by his male supervisor may have left the door open to employer liability even though the superior wasn’t listed as a reporting source in the anti-harassment policy, a federal district court in Illinois ruled. Denying summary judgment on his Title VII hostile work environment claim, the court also found that the supervisor’s alleged grabbing of his buttocks and "crotch" and inappropriate sexual comments—which he claimed occurred frequently over an eight-year period (including for five years after his complaint to the superintendent)—was sufficiently severe or pervasive and arguably based on his gender (Smuk v. Specialty Foods Group, Inc., July 13, 2016, Blakey, J.). Sexual harassment. The employee, who worked as a mechanic in a food processing and packing plant, claimed that his male supervisor began sexually harassing him shortly after he was hired in 2006. Over the next several years, the supervisor regularly grabbed his buttocks and "his crotch" and made inappropriate comments about his body (such as "you have a nice ass"). He also allegedly showed him pornographic video clips while commenting on the size of the male actor’s penis and made a reference to "f**king" him. When he protested, the supervisor yelled at him and gave him unfavorable assignments, once telling him "I am your boss and you can’t do anything to me." In May 2009, the employee told the plant superintendent that the supervisor was "molesting" and "inappropriately touching" him, and the superior allegedly remarked that the supervisor "most likely is trying to f**k you." The superintendent did not report his complaints to HR but instead told the supervisor to "treat everyone fairly." Nevertheless, the harassment continued. On July 5, 2012, the employee told the HR manager that the supervisor grabbed his buttocks and made statements such as "I will f**k your wife first, later you" and "I grabbed your wife, she has boobs like my daughter." After immediately opening an investigation, the HR manager met with the supervisor, who admitted to having "slapped" the employee’s buttocks. He was suspended and ordered to attend anti-harassment training, and his inappropriate conduct towards the employee ceased. Unhappy with what he perceived to be inadequate punishment, the employee submitted a written complaint to HR on August 2 detailing his prior allegations. The HR manager met with him a few days later to ensure he was not complaining of new harassment or retaliation. He confirmed he was not, but reiterated that his supervisor had grabbed him in his "intimate location" and that the harassing behavior occurred "many times." He subsequently filed an EEOC charge alleging sexual harassment and retaliation. Severe and pervasive. The employee sufficiently established that he subjectively believed that he was subjected to a hostile environment since, even though he waited for a period of time before complaining to the superintendent, when he did complain he described the behavior as "inappropriate" and "molesting." He also objected to his supervisor’s behavior as it occurred and asserted that the frequent, sometimes daily, actions humiliated and embarrassed him. His claims also satisfied the objective test. The alleged conduct took place over the course of several years, a large period of which occurred after he complained to the superintendent. Further, it consisted of frequent physical contact of his buttocks and crotch; frequent comments about his body; sexually charged comments; and pornographic materials. Courts have found conduct of similar severity and frequency to create an actionable HWE, and cases cited by the employer involving mere "horseplay" were distinguishable as they involved isolated incidents. Ample evidence also suggested that the harassment was due to his gender and not, as the employer argued, merely non-sexual "horseplay." The fact that the supervisor once also made sexual references about the employee’s wife did not show that he was an "equal opportunity harasser," since there was no evidence that his supervisor actually directly harassed any women or his wife in particular. In sum, a reasonable jury could conclude that his supervisor sexually harassed the employee because he was a male. Employer liability. It was also questionable whether the employer could establish the Faragher/Ellerth affirmative defense since the employee’s alleged complaint to the superintendent could show that he reasonably took advantage of the corrective opportunities provided by the employer. The parties disputed whether he technically followed its sexual harassment policy since the superintendent was not listed as a permissible recipient of a sexual harassment complaint. Nevertheless, even if he did not follow the formal complaint procedure, his report to the superintendent was sufficiently reasonable to create a triable fact issue. The employee’s statement that the supervisor "is molesting me" and "inappropriately touching me" reasonably put the superintendent on notice that he was alleging sexual harassment. Indeed, his assertion that the superior responded with the comment "most likely [the supervisor] is trying to f**k you," presented further evidence that the sexual nature of his complaint was clear. He also complained to the superintendent more than once and claimed that the harassment took place in front of other employees. No retaliation. However, the employee was unable to advance his retaliation claims. First, most of his claims occurred more than 300 days prior to his EEOC charge and thus were untimely. Moreover, his remaining claim as to a pay raise he alleged he was denied in 2012 failed because he couldn’t show it was causally related to his verbal complaint to the superintendent in 2009 or that he was treated less favorably than a proper comparator.

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