Employee advances same-sex hostile work environment claims
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Thursday, January 30, 2020

Employee advances same-sex hostile work environment claims

By Wayne D. Garris Jr., J.D.

The employee of the poultry producer alleged that his managers separated him from the harassing coworker, but neither reported the coworker to HR nor reprimanded him despite multiple incidents.

Denying Wayne Farms’ motion to dismiss, a federal district court in Alabama found that a former employee of the poultry producer sufficiently pled that he was subjected to sexual harassment by a male coworker and that the employer failed to take remedial action. Although the employee didn’t report the misconduct to HR as the employer’s policy required, his managers had knowledge of the harassing conduct; and the employer’s policy also required managers to report any harassment to HR as well. The employee also established that his managers physically separated him from his coworker, but failed to take disciplinary action against the coworker suggesting that employer could be liable for failure to take remedial action (Glanton v. Wayne Farms, LLC, January 24, 2019, Marks, E.).

Complaints. The employee complained to his supervisor about unwanted touching by a coworker. According to the employee, his supervisor laughed at the allegation and took no action. Thirty to 45 minutes later, the employee complained again and his supervisor moved him to another area. The employee alleged that his supervisor never reported his coworker’s behavior as required by the employer’s policy.

Misconduct continues. The employee alleged that the harassment did not stop even after he was placed at a different area of the plant. The employee went to his supervisor and two additional managers to complain again. The managers allegedly told him that he was being homophobic, and that they would move him away from the coworker; however, the employer did not discipline the coworker. The employee asserted that his coworker continued to touch him on a weekly basis while he was working.

Walkout. According to the employee, one day after the coworker touched the employee, a confrontation started. The managers intervened and took the employee to HR. An HR manager told the employee that the employer would investigate, however the employee claimed that the HR manager did not take any steps to ensure that he and the coworker would be separated during the investigation. The employee returned to work, but the coworker continued to try to sexually harass him. The employee stated that he felt like the employer would not protect him despite his previous complaint, so he left his work area and never returned to work.

The employee filed suit alleging hostile work environment under Title VII, constructive discharge under Title VII, and state law claims of outrageous conduct, invasion of privacy, assault and battery claim and negligent supervision claim. The employer moved to dismiss.

Hostile work environment. The employer argued that the employee failed to follow its policy of reporting harassment because he complained to a supervisor or manager, not to HR; and that even if the employee did follow the reporting policy, the employer took adequate remedial measures.

The court was not persuaded by the employer’s argument finding that its harassment reporting policy could reasonably be interpreted as allowing an employee to report harassment to a supervisor. While the policy requires employee’s to bring complaints to HR, it also stated "that harassment complaints or incidents of any kind brought to the attention of any manager or supervisor must be reported to the local Human Resources manager" and that "managers and supervisors have an obligation to promptly report complaints or incidents to their local Human Resources manager or representative." The court concluded that the policy contemplated that harassment complaints will be brought to managers or supervisors, which the employee did.

Remedial action. Turning to the employer’s lack of remedial action, the court noted that for the reasons previously discussed about the policy, the employer could not escape responsibility for misconduct that occurred prior to the employee complaining to HR. The employer’s response to the employee’s complaints was clearly insufficient because there was no evidence of a warning or any sort of reprimand for the coworker. Furthermore, the harassment continued even after management and HR received notice of the conduct.

Constructive discharge. Turning to the constructive discharge claim, the court found that the employee had already plausibly stated hostile work environment claim. The court acknowledged that the employer may be able to establish that the workplace was not sufficiently severe at a later stage in the litigation, but the employee pled sufficient facts to survive the motion to dismiss stage.

State law claims. The employee adequately pled that the employer knew of the coworker’s offensive conduct and failed to take remedial action. At the motion to dismiss stage, this was sufficient to advance his state law claims seeking to impose vicarious liability on the employer for the conduct of the coworker.

The case is No. 1:19-cv-327-ECM.

Attorneys: Kira Yalon Fonteneau (The Five Points Law Group) for Zacorius Glanton. James Hillary Pike (Shealy, Crum & Pike) for Wayne Farms LLC.

Companies: Wayne Farms LLC

Cases: Discrimination SexualHarassment TortClaims StateLawClaims Discharge AlabamaNews

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