In a sexual harassment case, a male employee charged his employer with failing to take prompt and corrective action to remedy a hostile work environment. The trial court in Smith v. Rock-Tenn Services, Inc., ruled in favor of the plaintiff, awarding him compensatory damages. But the employer appealed the judgment, sending the case to the U.S. Court of Appeals for the Sixth Circuit to consider the Title VII violation. The court’s decision is instructive for employers faced with same-sex sexual harassment claims. 

EMPLOYEE SUFFERS HARASSMENT

The plaintiff worked in his company’s Converting Department, where he was a support technician on a die cutter machine. The department comprised approximately 70% men and 30% women. The plaintiff witnessed a male co-worker groping a male die cutter machine operator’s backside. The co-worker then slapped the plaintiff’s backside as he walked away. The plaintiff responded by warning the co-worker to keep his hands off of him. One week later, the co-worker again groped the plaintiff’s backside. In response, the plaintiff pointed his finger in the co-worker’s face and warned, “You’re going to cause somebody to get hurt in here.” The employer’s sexual harassment policy required employees to speak with harassers directly and then, if the conduct didn’t stop, to bring their concerns to management.

A month later, the co-worker grabbed the plaintiff around the hips from behind. In response, the plaintiff held the co-worker by the throat and lifted him off of the ground. The plaintiff reported the incident to the die cutter operator, who advised him to go outside and calm down. However, the plaintiff was still upset, so he was sent home. That weekend, the plaintiff spoke to another colleague who, in turn, told the plant’s superintendent about the incident.

EMPLOYER RESPONDS

During a meeting the following Monday, the plaintiff reported the incident to his direct supervisor. According to the plaintiff, the supervisor responded that the co-worker had “done ... this again.” Thereafter, the superintendent told the plaintiff that nothing could be done until the following Friday because his supervisor, the operations manager, was on vacation.

Then the plaintiff was sent back to work in the same area as the harassing co-worker. But he found it difficult to concentrate and suffered an anxiety attack. He requested and was granted leave to seek counseling for sexual harassment.

About 10 days later, a group of managers investigated the plaintiff’s charges and recommended terminating the harasser. However, he was only suspended for two days. The plaintiff never returned to work.

PREVAILING ON TITLE VII CLAIM

To prevail on a Title VII hostile work environment claim, a plaintiff must show that:

1. He or she is a member of a protected class,
2. He or she was subjected to unwelcome harassment,
3. He or she was harassed based on sex,
4. The harassment created a hostile work environment, and
5. The employer is liable.

When a plaintiff is alleging same-sex harassment, the requisite inference of discrimination based on sex can be established in one of three ways: 1) The harasser making the sexual advances is acting out of sexual desire; 2) the harasser is motivated by general hostility to the presence of men in the workplace; or 3) the plaintiff offers direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

APPEALS COURT RULES

In this case, the appeals court affirmed the trial court’s holding that the jury could have found the conduct to be severe or pervasive even though the employer characterized the repeated sexual contacts as “horseplay.” The court believed that the conduct went beyond horseplay. It also held that the workplace was a mixed-sex workplace because 30% of the employees who worked in the same department as the plaintiff were female. Further, the plaintiff was able to show sex-based discrimination by his male co-worker by presenting evidence that he slapped, pinched and touched only male workers’ behinds — not those of female employees.

The court found the employer to be liable for the harassment. To impose liability on an employer for a co-worker’s harassment, a plaintiff must show that
the employer’s response to the employee’s complaints manifested indifference or was unreasonable in light of facts that the employer knew of or should have known. The court held that there was sufficient evidence that the employer had failed to respond appropriately. The employer didn’t respond for 10 days after the complaint was made and it failed to separate the harasser and plaintiff.

MINIMIZING LIABILITY

All cases of sexual harassment — including those involving same-sex employees — need to be taken seriously. Employers that don’t act immediately face potential liability. So if a complaint is made, investigate it thoroughly and, while the investigation is taking place, physically separate the complainant and the alleged harasser. If your investigation results in proof that harassment took place, discipline the harasser in a way that corresponds with the seriousness of the harassment and your organization’s policies.