Federal Court of Appeals Gives Split Decisions in Trio of Hostile Work Environment Sexual Harassment Cases
The Seventh Circuit issued a trio of decisions recently in a five week period addressing claims of hostile work environment harassment. Sexual harassment claims continue to comprise a significant portion of claims being filed with federal, state and local fair employment agencies and in state and federal courts. Additionally, the EEOC has made prevention of workplace harassment of teen workers a priority.
In the first of the three decisions the claim of the employee, a part-time bus driver, was rejected by the Court of Appeals. The Court of Appeals agreed with the trial court that the employee had failed to prove that she had been subjected to hostile work environment harassment. Many of the employee’s allegations related to conduct that was not directed toward her or was not necessarily based upon gender. In the second case, the Court’s analysis for determining when an employer is on notice of harassment in the workplace was somewhat helpful to employers. In the final case, the Court examined when hostile work environment harassment claims are barred by the 300 day statute of limitations. The Court’s decision, in the right case, may be potentially beneficial to employers.
Carla Yuknis worked as a part-time bus driver for First Student, Inc. Yuknis complained that “all levels of personnel” at the employer showed disrespect for marital vows, watched pornography on computers, used foul language, told vulgar jokes and gambled at work. Yuknis claimed that a manager referred to another bus driver as a “fat ass.” She also reported that a manager sold Avon products at work and that the manager described an incident in which his male cat raped his female cat. Yuknis also reported that a co worker, at an office party, gave an assistant manager elephant underwear with a sexually suggestive trunk.
None of the above conduct was directed specifically at Yuknis. Yuknis, however, claimed that two incidents were directed at her: (1) a manager told her that his teen daughter had watched him walk naked from the shower to the bedroom; and (2) when Yuknis approached the manager about buying an Avon product called “sensual moments”, the manager said that she should join the manager in his office and shut the door. The trial court threw out Yuknis’ lawsuit and the Seventh Circuit Court of Appeals agreed. The Court of Appeals noted that the two above incidents of inappropriate conduct did not create the severe and pervasive hostile work environment necessary for an employee to proceed with a sexual harassment claim.
The Court of Appeals focused on whether the employee was the target of the inappropriate conduct or within the “target area.” A person is the target when the offending conduct is directed at that person. This is the type of conduct that sexual harassment law is primarily directed at preventing and remedying.
An employee may also be able to claim hostile work environment harassment based upon being in the target area. This means being a member of a group that is being vilified, even though the individual was not singled out. The example given by the Court is where a manager makes a statement that, “all women are bitches” and the statement is overheard by a female employee, even though the statement was not made to her or about her directly. The Court seemed to include within “target area” harassment which is both offensive conduct overheard by the employee even though not directed at her and offensive conduct that the employee heard about, even though she did not directly witness the conduct. The Court reasoned that the more remote or indirect the conduct that forms the basis of the hostile work environment claim, the weaker the inference that such conduct actually made the employee’s working conditions unbearable.
The Court, in its decision, also repeated the general observation that discrimination laws are not intended to be codes of workplace civility. The fact that an employee refers to another employee as a “fat ass”, for example, may have absolutely nothing to do with sexual harassment. This term can apply equally to males and females. Similarly, the fact that employees use vulgarity in the workplace or gamble at work does not necessarily create a hostile work environment for purposes of employer liability. Yuknis v. First Student, Inc., Seventh Circuit Court of Appeals (March 28, 2007).
Karen Bombaci began working at Journal Community Publishing Group, Inc., a publisher of community newspapers in the Hartland, Wisconsin, in 1998 as a press room jogger. She worked with fellow jogger Sarah Stoll and several press operators including Ryan Wampner and Glenn Mueller. James Creasey managed the printing facility. Bombaci claimed that she was sexually harassed by Wampner and Mueller. The harassment included grabbing Bombaci’s breasts, pulling down her shirt to reveal her bra, grabbing Bombaci’s buttocks, Mueller rubbing his body against Bombaci’s and other similar vulgar inappropriate sexual acts and comments. Bombaci claimed that this conduct occurred on a weekly basis and others corroborated many of the allegations.
Bombaci did not personally complain until 2001 of the offensive conduct, although the conduct had begun shortly after she started her employment. Bombaci claimed that co-worker Stoll told Bombaci that Stoll had reported improper conduct to manager Creasey in 1999. Bombaci claimed that Creasey’s response was that Bombaci should report the conduct, “up front” which Bombaci understood to mean to a vice president. Bombaci did not do so.
In March, 2001, Bombaci reported to Cynthia Barrows, a new HR department employee, that an employee was looking down Bombaci’s shirt when she bent over to stack newspapers. Bombaci did not identify the employee as Wampner because she was concerned that it would lead to his dismissal. Barrows investigated the allegation and the investigation lead to the dismissal of both Wampner and Mueller. Bombaci resigned in September of 2001 claiming that she felt her co-workers ostracized her after Wampner and Mueller were let go.
Bombaci and the EEOC filed a lawsuit against Journal Community Publishing which the trial court dismissed. The Court of Appeals disagreed and reinstated the case. There was no question that Bombaci had been subjected to conduct of a sexual nature, that the conduct was unwelcome and that the conduct alleged was severe and pervasive enough to create a hostile work environment. The only question for the Court of Appeals was whether there was a basis for employee liability. Because Bombaci claimed that the harassment was by a co-worker, rather than a supervisor, an employee must show that the employer had knowledge of the offensive conduct and failed to take prompt remedial action to address the problematic conduct. The case focused on the knowledge piece of the equation.
Manager Creasey testified that he had never observed Mueller or Wampner engaging in harassing conduct toward Bombaci and that he first learned of it when Bombaci brought her concerns forward to Barrows. Bombaci claimed that the employer had “constructive knowledge” of the offensive conduct because many of the acts occurred in the general vicinity of Creasey’s office. The Court rejected this constructive knowledge argument noting that the printing presses were loud and Creasey normally had his door closed. There was no basis in which to conclude that he would have or should have known of the conduct under these circumstances.
Bombaci next claimed that by telling co-worker Stoll of the harassing conduct, she had reported the harassment to a “supervisor”. The employer’s anti-harassment policy provided that reports of workplace harassment should be made to a supervisor or manager, to the HR manager or to the company president. The Court concluded that Bombaci could not have reasonably believed that Stoll was a supervisor. Although Stoll assisted with scheduling and assignment tasks to joggers, she performed none of the other duties typically associated with being a supervisor. The Court looked to harassment law based on supervisory conduct to determine if Stoll was a “supervisor” and concluded that Stoll did not meet this test.
Finally, the Court examined whether Bombaci’s statement that Stoll had told Creasey about the offensive conduct back in 1999 was sufficient notice. Even though both Stoll and Creasey denied under oath that they had ever had the conversation claimed by Bombaci, the Court concluded that this was a credibility issue that the jury had to sort out. The Court of Appeals sent the case back down to the trial court to give Bombaci a trial on her harassment claim. Bombaci v. Journal Community Publishing Group, Inc., Seventh Circuit Court of Appeals (April 10, 2007).
Carol Isaacs worked for Hill’s Pet Nutrition, Inc. packaging pet food and preparing bags for shipment. Isaacs filed a lawsuit raising numerous claims of discrimination and retaliation, many of which were not part of her administrative complaint filed with the EEOC, so these claims were not considered by the Court. Among the claims raised by Isaacs was a sexual harassment hostile work environment claim. Isaacs claimed that while she worked with the packaging team for approximately 20 months, she was subjected to harassment in the workplace. After leaving that team and working with the stretchwrap team, she claimed she was again subjected to hostile work environment sexual harassment. The trial court dismissed Isaacs’ case because she had not timely filed a compliant relating to the packaging department conduct and because, without the packaging department conduct, the stretchwrap department conduct was not severe and pervasive enough to give rise to a hostile work environment claim.
The Court of Appeals disagreed with the trial court and reinstated Isaacs’ case. The employer argued that the alleged harassment during the two separate time periods constituted two separate acts of discrimination for purposes of calculating the proper statute of limitations. The 300 day limitation period for the packaging department conduct would clearly have passed by the time Isaacs filed her administrative compliant. The employer then reasoned that since these acts should not be considered for evaluating Isaacs’ harassment claim based on conduct while she worked in the stretchwrap department, that portion of Isaacs’ harassment claim should be dismissed.
The Court of Appeals agreed in theory with the employer’s approach but found it inapplicable. Where an employee remains in a single chain of command where the same people control how the employer addresses problems in the workplace, a court will consider all claimed harassment, no matter when it occurred in the employment, as a single employment practice for purposes of determining the appropriate statute of limitations period. As long as one act of alleged harassment was within the 300 day period prior to the filing of the administrative complaint, the employee’s claim will be timely. Isaacs v. Hill’s Pet Nutrition, Inc., Seventh Circuit Court of Appeals (May 4, 2007).
The fact that the federal court of appeals issued three sexual harassment decisions in a five-week period indicates that hostile work environment claims remain a major area of discrimination complaints. These cases are very expensive for employers, even where the employer is successful in obtaining dismissal of the case prior to trial. The cases discussed above indicate that federal courts are permitting many of these cases to proceed to trial. A jury trial can result in significant risk of not only hundreds of thousands of dollars in damages but also a similar amount of attorney’s fees for a prevailing plaintiff’s lawyer. A number of rules to follow to prevent workplace harassment claims are:
- Have a written policy prohibiting harassment in the workplace and further prohibiting retaliation against any employee who raises concern under the anti-harassment policy
- Clearly indicate in the written policy who complaints of harassment should be made to
- Provide training on your harassment policy and your expectations to all employees with additional training to supervisors
- Investigate all complaints of harassment promptly and thoroughly
- Take appropriate remedial action if you determine that there has been a violation of your anti-harassment policy
- Monitor the workplace on a regular basis to detect and address conduct which may be in violation of your policy (e.g., remove offensive posters and calendars, and cover any offensive writing on walls such as bathroom walls)
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