By Marjorie Johnson, J.D.
Allowing a male employee who won at trial on his Title VII claims of same-sex hostile work environment to keep $300,000 in compensatory damages, the Sixth Circuit rejected his employer’s assertion that the coworker’s harassment was non-sex-based “horseplay;” that it was not actionable since he was only subjected to unwanted touching three times; and/or that it responded appropriately by suspending the harasser for two days. The record revealed that the coworker’s harassment was directed at only men in a mixed-gender workplace, that the physically invasive conduct escalated in a short period of time, and that management failed to consider the harasser’s prior discipline for inappropriate touching (Smith v. Rock-Tenn Services, Inc.
, February 10, 2016, Clay, E.).
The employee worked at a corrugated packaging factory. In December 2010, he observed a male coworker who had just returned from medical leave come up behind a male machine operator, grab his butt, and sniff his finger. After the coworker later slapped the employee himself on the butt, the employee warned him to “keep his hands off.” However, a week later the coworker grabbed him on the butt hard enough to make him sore. This time, the employee grabbed him by the arm and demanded that he never touch him again.
Nevertheless, about a month later, the coworker came up behind him, grabbed him by the hips, and started “hunching” on him so that his “privates” were against him. The employee then grabbed him by the throat and lifted him off the ground. He was so visibly upset that the operator sent him home.
After he told his supervisor about the “hunching” incident two days later, the superintendent informed him that nothing could be done until the operations manager returned from vacation the following Friday. The employee went back to work alongside the coworker and suffered extreme distress. After having an anxiety attack, he documented the incidents and asked for sick leave, which was granted. Management then began an investigation and ultimately suspended the coworker for a day and a half to two days, even though he had previously been warned about a prior incident of harassment. Due to the stress he continued to suffer, the employee never returned to the plant.
Based on sex.
The employee presented “direct comparative evidence” that the company operated a mixed-sex workplace in which the coworker exposed only men to unwelcome touching. Notably, he presented evidence that his department consisted of 70 percent men and 30 percent women, that his supervisor was female, and that men and women encountered one another regularly. Moreover, it appeared the harasser treated men and women differently (by mooning other men and touching only male employees). Finally, the jury reasonably found that “pinching and slapping someone on the buttocks or grinding one’s pelvis into another’s behind goes far beyond horseplay.”
In arguing that the employee did not suffer an actionable HWE, the employer focused only on the three incidents in which he was directly involved, which it described as “sporadic, isolated male-on-male horseplay.” However, in finding that an actionable HWE existed, the jury could have also considered the incident in which he observed the coworker pinch the male operator. Moreover, all of the physically invasive incidents took place over six months and escalated from a slap on the rear, to a painful grab, to briefly simulating sex.
Too little, too late.
The jury also reasonably concluded that the employer’s response was inadequate. After he brought the “hunching” incident to the attention of his supervisor, the superintendent (who had given the coworker a warning less than three months earlier), informed him that nothing could be done until the operations manager returned at the end of the following week. Then, for one and a half weeks, the employee had to work 10–15 yards from the coworker. Only after he documented the incidents and requested leave did the company initiate an investigation.
When management interviewed the coworker, it took him at his word that the employee backed into him. It also failed to follow its own policies as the outcome of the investigation was not the required written report. Rather, a page of barely legible notes was prepared that contained red flags on which the employer followed up only minimally. For instance, a note indicated a prior complaint about the harasser and rumors about his inappropriate touching. Moreover, the superintendent and operations manager never communicated to the manager in charge of discipline about the coworker’s prior warning and admonishment that future complaints would result in discharge. As a result, he was only suspended for two days.
A reasonable jury could have concluded that its total inaction for 10 days, despite having told the coworker that further complaints would result in termination, was unreasonable. It did not separate the two men, suspend the coworker pending an investigation, or initiate its investigation in a timely manner. A reasonable jury could find that the failure to take any of these steps or others rendered its response neither prompt nor appropriate.
The appeals court also rejected the employer’s assertion that the employee’s “post-employment woes” were due to his voluntary resignation. Finding enough evidence that his prolonged psychological difficulties stemmed directly from the harassment, the court noted that he experienced a panic attack when someone came up close behind him at the supermarket. Since his testimony about his post-employment mental state concerned the lasting effects of the harassment, it was admissible and no new trial was warranted.