September Legal Roundup: Is Employer Liable for 'Creepy' Coworker

Here’s the latest on some employment-related cases that have gone before the courts:

Sex Discrimination | Disability Discrimination | Religion, Race, National-Origin Discrimination | Legislation and Administrative Action

Sex Discrimination

Creepy love poet in short shorts.

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A police chief and a mayor failed to stop sexual harassment of a female police-department dispatcher. A part-time male dispatcher had been previously warned about “peeping,” watching a female employee through the building windows at night. He then shifted his attention to a new female dispatcher. He told her he was in love with her. She told him she was married, not interested and asked him to stop. He continued. He began “peeping” at her at night. He sent numerous unwelcome romantic emails and text messages. He came in on off-time while she was working and recited love poems to her, while he was wearing very short shorts, with no underwear, and sat with his legs wide apart. He followed her on and off the job. The female dispatcher complained to the chief, who kept promising to act but never did. The chief observed several of the incidents and commented, “That man is crazy. You better watch him,” or, “I can’t believe that fool just asked you that.” The chief continued to do nothing.

The dispatcher complained to the mayor about the unwelcome attention and the fact that the male dispatcher was following her. The mayor responded, “I don’t blame him, baby. I’d like to follow you around, too. Look at you. Why wouldn’t he want to” The chief said that since the mayor wouldn’t act, all she could do was go to the city council. But when the dispatcher stood up to talk at a council meeting, the chief grabbed her shirt, pulled her back into the chair and said, “Let’s not embarrass the town! We’ll handle this in the morning.” The next morning, the chief did not handle the matter. No action was taken. The dispatcher quit, stating she could no longer endure the harassment.

Sometime afterward, the male dispatcher was fired. Among the reasons given were “over 90 incidents” of inappropriate conduct toward the female dispatcher. The female dispatcher sued under 42 U.S. Code 1983 and Title VII. The city defended by claiming the situation was not hostile or pervasive enough to affect the terms or conditions of employment. The court found otherwise. It found ample evidence of sexually hostile, pervasive, offensive sexual harassment. The court found that the behavior was “creepy” and that management knew the male dispatcher was an offensive “pest” yet took no effective action. Its own too-late discharge of the employee documented its knowledge of the severity of the behaviors.

Hollis v. Town of Mount Vernon (S.D. Ala., 2013)

Advance apology did not work.

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On the first day of a cashier’s job, her supervisor stated that he wished to apologize in advance for any offensive conduct or statements he might direct toward her. He then proceeded to subject the cashier to a series of sexual statements, ignoring her requests to stop harassing her. She protested to a higher manager, who counseled her that she probably would not want to be responsible for the supervisor losing his job due to her complaint, then took no effective action.

The cashier quit due to the unbearable situation and filed a Title VII case. The court found ample evidence for a valid harassment case.

Hoffner v. Associated Lumber Industries, Inc. (S.D. Ill., 2013)

Plaintiff’s failure to cooperate and perpetrator’s suicide preempt case.

An employee informed human resources that her supervisor had done something “horrific.” However, she then refused to provide details, in spite of repeated urgings. HR attempted to investigate anyway. The supervisor was interviewed multiple times and denied any impropriety. After the third meeting, he left work and committed suicide. The plaintiff ultimately revealed that prior to a confidential discussion, the supervisor had ordered her to raise her shirt and bra to show she was not wearing a recording device. Afterward, he kissed her.

The court ruled that the company was not liable for harassment. The plaintiff’s own refusal to cooperate made it impossible for the company to effectively investigate and solve problems. The company tried in good faith, in spite of the plaintiff’s noncooperation. Thus, the employee’s complaint was dismissed.

Crockett v. Mission Hospital, Inc. (4th Cir., 2013)

Matchmaking effort was not harassment.

A male employee’s case of sexual harassment was dismissed as insufficient. He complained that a female coworker continued to suggest he date a friend of hers. He said he was not interested, but she persisted, and management took no action. The court found that there was proof of only three instances of “innocuous comments” asking him if he was dating someone and whether he would be interested in dating the coworker’s friend.

The court ruled the behavior was neither overtly hostile nor pervasive and did not tangibly affect the male employee’s ability to effectively function in the work environment. The matchmaking effort did not fit within the scope of Title VII harassment.

Laincy v. Chatham County Board of Assessors (11th Cir., 2013)

Employer settles sex discrimination claim for $50,000, then claims and wins $4.7 million from EEOC for expense of defending groundless case.

The Equal Employment Opportunity Commission (EEOC) brought a class-action suit on behalf of 270 female employees. The case cited specific discrimination facts involving two individual employees, and then alleged that all of the other women were similarly situated victims of a pattern and practice of discrimination. After protracted litigation, the company settled the individual claims for $50,000. It then filed against the EEOC for all of its legal fees and the defense cost for all the other claims.

The court found in favor of the company. It found the EEOC had simply added on the other “class members” without ever investigating any of their situations. It had filed an “unreasonable and groundless” claim with no foundation, in violation of its own rules. Thus, it forced the defendant to undergo defense of an unnecessary and baseless suit and should have to reimburse the company for that defense.

EEOC v. CRST Van Expedited, Inc. (N.D. Iowa, 2013)

Disability Discrimination

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EEOC maintains that ANY serious condition is a disability, even if temporary.

An employer has settled an EEO case over replacement of an employee who had temporary, short-term postpartum depression. The EEOC’s position is that under the ADA Amendments Act, a disability may be any serious condition of any length which is “substantially limiting.”

The company did not admit any fault and decided to settle for $90,500 rather than litigate the matter.

EEOC v. Midcontinent Independent Transmission System Operator (S.D. Ind., 2013)

Fear firing results in liability for placement agency and further litigation for company of placement.

A person with a prosthetic leg was placed by an agency as a temporary inspector at an electronics plant. A supervisor at the plant found out about the leg and requested that the agency remove the temp out of fear that someone might bump into her and knock her down. The placement agency complied and then did not place the person anywhere else.

The EEOC filed an American With Disabilities Act (ADA) action against both the electronics plant and the placement agency for complying with an illegal request. The placement agency settled for $100,000 plus monitoring and training compliance conditions. The electronics plant has not settled, and the EEOC continues to pursue further damages and remedies.

EEOC v. Staffmark and Sony Electronics (N.D. Ill. 2013)

Forever ban violates ADA.

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A trucking company policy provided that any commercial driver who disclosed an alcohol problem (voluntarily and prior to any testing request) could never return to a driving position, even after completing a substance-abuse program.

The court found this forever ban violated the ADA as a matter of law. Immediate removal from driving was valid under the law, but the refusal to ever consider treatment and rehabilitation “cannot be justified due to public-safety concerns or business necessity.”

EEOC v. Old Dominion Freight Line, Inc. (W.D. Arkansas, 2013)

Religion, Race and National-Origin Discrimination

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Hindu officer has promotion caseno minority promotions since the 1990s.

A Hindu corrections officer born in Fiji was ruled to have a valid religion, race and national-origin case regarding a denial of a promotion to sergeant. The superintendent in charge promoted other white and Christian officers who had scored similarly or lower on the promotional exam; two of them had not even completed the full exam.

There was evidence that the superintendent downgraded the plaintiff’s interview answers while rating the same answers higher for the white non-Hindu officers. Finally, not a single nonwhite person had been promoted to sergeant since the superintendent took office in the 1990s, despite multiple applicants.

Devi v. Oregon Department of Corrections (D. Ore., 2013)

White workers win case for protesting treatment of African-American employees.

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Two white maintenance employees informed management that a supervisor was using racially hostile language about Black coworkers, including the N-word. They refused to yield to a manager’s pressure to drop the matter. They filed grievances and a formal complaint about the continuing racially offensive behaviors. The manager who had urged them to drop the matter then “reorganized” the department and eliminated both employees’ jobs. Other managers saw “no business reason” for the reorganization, but it was allowed to proceed.

In the Title VII retaliation case, the jury found no justification for the elimination of the two jobs except for retaliation. It awarded back pay plus $300,000 each for compensatory and emotional distress damages.

Bennett v. Riceland Foods, Inc. (8th Cir., 2013)

Legislation and Administrative Action

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Veterans and Servicemembers Employment Rights and Housing Act introduced.

The House and Senate will consider bills (H.R. 2654 and S. 1281) which would prohibit employers and unions from discriminating due to military service on the same terms as other Title VIIprotected categories. The bills have a housing-discrimination component under the Fair Housing Act. The EEOC would enforce the employment provisions.

This is more extensive than the Uniformed Services Employment and Reemployment Rights Act (USERRA), which only protects those on or returning from Guard, Reserve or active duty, and only for a limited number of years. The proposed act would cover “all those who have served in uniform,” no matter when.

Older Workers Against Discrimination Act.

Bipartisan bills (S. 1391 and H.R. 2852) have been introduced to nullify the Supreme Court decisions in Gross v. FBL Financial Services, Inc. (2009) and University of Texas Southwestern Medical Center v. Nassar (2013). Those cases ruled that the Age Discrimination in Employment Act (ADEA) and the retaliation provisions of Title VII require a plaintiff to show that age discrimination or Title VII retaliation were the sole reason for an adverse action. If there were any other additional reasons for the employers’ decisions, the plaintiff loses.

Other discrimination laws allow a “mixed motive” proof: The plaintiff wins if discrimination is just one among several reasons for the employer’s actions. The proposed law would allow “mixed motive” proof in ADEA and retaliation cases.

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached

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