Sixth Circuit Decision expands claims of HWE and retaliation based on coworker conduct
February 19, 2008
The Sixth Circuit issued a troubling decision today expanding employer liability for claims of hostile work environment and retaliation. The decision in Hawkins v. Anheuser-Busch, Case No. 07-3235, is available here.
Hawkins is another case of bad facts making bad law. The court repeatedly described the offending employee as a "known serial harasser," whose conduct ranged from vulgar comments and inappropriate touching to damaging multiple vehicles and burning down the home of one of the women he harassed. (The Company had already tried to terminate the harassing employee once for sexual harassment, but was forced to reinstate him through the union grievance process.)
Three things from this opinion are significant:
1. The court held that plaintiffs can support a HWE claim with evidence that the alleged harasser has committed similar acts against other women, even if the prior harassing acts were directed at others or occurred in the plaintiff’s absence.
2. Evidence of past allegations of sexual harassment against an employee will be considered when evaluating whether subsequent unspecified complaints against the same employee placed the employer on notice that the new complaints were actually complaints of sexual harassment.
3. An employer will be held liable for coworker retaliation if (1) the coworker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination, (2) supervisors or members of management have actual or constructive knowledge of the coworker’s retaliatory behavior, and (3) supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff’s complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances.