RECENT HARASSMENT RULINGS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Four interesting Title VII harassment rulings were rendered last month, two on sexual harassment, one on racial harassment, and one on same-sex harassment. Each ruling contains an important message.

In one of the sexual harassment cases (Berry v. Chicago Transit Authority [2010 U.S. App. LEXIS 17605, 8/23/10]), Berry alleged that she was sitting at a table and playing cards during a work break when Carmichael, a co-worker, demanded that she move. Carmichael grabbed Berry’s breasts and lifted her from the table, and rubbed her buttocks against the front of his body three times. Berry claimed she complained to an investigator, who told her he didn’t care what happened, and that he was going to do whatever it takes to protect the Chicago Transit Authority [CTA]. The 7th Circuit overturned a summary judgment for the CTA, ruling “a single act can create a hostile environment if it is severe enough, and instances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment.”

In the other sexual harassment case (Sheriff v. Midwest Health Partners [2010 U.S. App. LEXIS 18104, 8/30/10]), the 8th Circuit affirmed a jury award of $100,000 for a female physical therapist who was kissed and repeatedly embraced by a male co-worker over a two-year period. The court ruled that the employer’s response to Sheriff’s complaint was neither prompt nor adequate. Specifically, no action was taken after her first complaint, the harassment continued, and the employer did not respond to a second complaint for seven weeks (thus, not prompt). Additionally, the harasser did not consent to the employer’s remedial plan (thus, not adequate). Two of three 8th Circuit judges ruled that the “damage award was not shocking, monstrous, or plainly unjust”, but the third judge argued that the award should be reduced to $50,000 under Title VII caps for companies with less than 101 employees.

In the racial harassment case (Armstrong v. Whirlpool), the District Court from the Middle District of Tennessee granted summary judgment to Whirlpool in 2007 [2007 U.S. Dist. LEXIS 14635] and the 7th reversed and remanded [2010 U.S. App. LEXIS 1647]. As reported by BNA, the district court ruled on 8/16/10 that a “reasonable jury could find that [Whirlpool’s] policies were not sufficient to end the problem.” The problem, as claimed by the plaintiffs, was that white co-workers engaged in racially offensive conduct, including racial epithets and bathroom graffiti. The court ruled that Whirlpool’s attempt to clean the bathrooms was not sufficiently prompt or corrective, and that a “serial harasser” was given a few oral warnings, but was never fully investigated.

In the same-sex harassment case (Cherry v. Shaw Coastal [2010 U.S. Dist. LEXIS 78187, 8/3/10], Cherry alleged that he was harassed by a male co-worker (Reasoner), claiming there were sexual proposals, suggestive text messages, and unwanted touching. What’s interesting here, is that the trial judge found the abuses sufficient a jury to infer battery under Louisiana law, but was insufficient under the Supreme Court standard in Oncale v. Sundowner (1998) [523 U.S. 75) for a same-sex harassment claim because Cherry had to prove that Reasoner is gay, and that the basis for the harassment was sexual in nature, as opposed to being “horseplay.” The judge ruled “Title VII is not ….. a general civility code and simply because Cherry did not like Reasoner's conduct does not make it severe or pervasive.” This type of behavior would be outlawed if Congress passes the impending Employment Non-Discrimination Act (ENDA).

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