Sexual Harassment: Were Employee’s Demands Protected Activity?
Recently, the U.S. 6th Circuit Court of Appeals–which covers Kentucky, Michigan, Ohio, and Tennessee—found that an employee’s demand that a supervisor stop his harassing conduct constituted protected activity covered by the opposition clause of Title VII of the Civil Rights Act of 1964. This article explores the Title VII sexual harassment and retaliation analysis when employees complain directly to the source of the problem.
Facts New Breed Logistics is a supply chain logistics company that operates a warehouse in Memphis. Early in New Breed’s operations, temporary employees made up approximately 80% of its workforce. At that time, the company’s policy was to provide an employee handbook, which contained its sexual harassment policy, only to permanent employees. Jacquelyn Hines, Capricius Pearson, and Tiffany Pete began working as temporary employees for New Breed in 2008. Hines and Pete were hired through a staffing agency and were initially assigned to the shipping department. James Calhoun, a supervisor in the receiving department, transferred them to his department just days after they were hired. Calhoun helped Pearson secure employment with New Breed, and she was assigned to his department as well.
The three women accused Calhoun of repeatedly making sexually suggestive comments. Some of the remarks were accompanied by physical contact. Christopher Partee, a male employee in the receiving department, worked closely with Calhoun and witnessed the harassment firsthand. Hines, Pearson, and Pete demanded that Calhoun stop the harassing conduct, and Partee even warned him to “calm down.” Hines testified that she “went off” and told Calhoun to “get the ____ out of my face.” Shortly after voicing their complaints to Calhoun, all four employees were terminated.
Thereafter, the Equal Employment Opportunity Commission (EEOC) filed a Title VII sexual harassment and retaliation lawsuit against New Breed. Following a jury trial, New Breed was found liable under Title VII, and the employees were awarded compensatory and punitive damages totaling more than $1.5 million. The employer sought to have the jury’s verdict set aside and get a new trial, arguing that the evidence didn’t support the finding of liability and award of punitive damages. The district court denied those motions, and New Breed appealed. 6th Circuit’s ruling The 6th Circuit affirmed the denial of New Breed’s motions and upheld the jury’s verdict.
The court found that the EEOC presented enough evidence to allow the jury to conclude that all elements of a claim of sexual harassment and retaliation were satisfied. The EEOC had to show that (1) the employees engaged in activity protected by Title VII, (2) the employer knew about the protected activity, (3) the employer took an adverse action against the employees, and (4) there was a causal connection between the protected activity and the adverse action. The court quickly dismissed New Breed’s argument that the employees’ protests weren’t protected activity and the relevant decision makers lacked knowledge of the protected activity. The court reasoned that an employee’s demand that a supervisor cease his harassing conduct constitutes protected activity because the demand opposes “an unlawful employment practice” as contemplated by Title VII.
In rejecting the employer’s lack-of-knowledge argument, the court found that Calhoun clearly had knowledge of the protected activity because it was directed at him. Also, he terminated one employee himself, making the connection readily apparent. For the employees who were terminated by other supervisors, the court found that New Breed could be liable under the “cat’s-paw” theory. Under that theory, the focus is on whether another individual (acting with retaliatory bias) and not the actual decision maker “is the driving force behind the employment action.” Not only did Calhoun disparage Pete’s and Pearson’s work ethic to their new supervisor, but he also took credit for their terminations during his testimony at trial. In finding the causation element was satisfied, the court examined two factors: (1) the temporal proximity between the employees’ protected activity and their terminations and (2) the nonretaliatory reasons offered for the terminations.
While temporal proximity alone isn’t enough to create an inference of causation, the jury was certainly allowed to consider it. More important, the district court found—and the 6th Circuit agreed—that the EEOC presented sufficient evidence for the jury to reject New Breed’s “legitimate nonretaliatory reasons” for the terminations as pretextual (false). For instance, Calhoun recommended that Hines be terminated for attendance problems, but the evidence showed that before she rejected his sexual advances, he regularly offered to clock her in to avoid tardiness. Also, Partee, the male employee who warned Calhoun about his conduct, was terminated for time clock improprieties. However, Calhoun approved early arrivals and overtime, often clocking Partee in and out manually before he complained. New Breed was unable to escape vicarious liability for Calhoun’s conduct because a tangible employment action was taken against employees who actively opposed sexual harassment.
What’s more, the court found that the $1.5 million punitive damages award was justified because Calhoun’s retaliation against the employees amounted to malice or reckless indifference to the employees’ federally protected rights. Calhoun worked in a managerial capacity and acted within the scope of his employment by directly terminating or influencing the terminations of the employees out of retaliatory animus. In the end, New Breed’s liability for punitive damages couldn’t be avoided because there simply was no evidence of “good-faith efforts to comply with Title VII.” The court examined whether New Breed had a written sexual harassment policy (it did) and whether it effectively publicized and enforced the policy (it didn’t). Only permanent employees received the company’s antiharassment and antidiscrimination policies. Temporary workers, like the employees in this case, didn’t receive the policies. It’s entirely unclear whether the sexual harassment policy was enforced in a meaningful way. The court reviewed New Breed’s investigation of the harassment. The company’s only action was to interview Calhoun, who, not surprisingly, denied the allegations. Again, the court found that the evidence was sufficient to support the jury’s verdict. EEOC v. New Breed Logistics, No. 13-6250, 2015 U.S. App. LEXIS 6650 (6th Cir., Apr. 22, 2015).
Bottom line the 6th Circuit made it clear that employee complaints of sexual harassment need not be addressed to a particular authority. Objections aimed directly at a harassing supervisor will be deemed protected activity, and employers could face liability if the harassment results in a tangible employment action. However, there are ways for employers to avoid some of the pitfalls in this case.
First, ensure that written policies are publicized, made available to all employees, and enforced consistently. Second, thoroughly investigate complaints of workplace harassment—don’t just take the word of an accused supervisor and call it a day. Third, follow up with measures reasonably necessary to prevent or promptly correct offensive conduct, and communicate your efforts to the complaining employee. Finally, document all corrective and remedial actions taken. Source: www.hr.bl.com; April Knox, Butler Snow Law.