A Federal Jury Sends a Message in the #MeToo Era

By: Amy Epstein Gluck

#MeToo is real.

That is, #MeToo as a movement or an era or even a concept applies to real people of all backgrounds, to blue collar as well as white collar workers. One thing I know for sure—no one sets out desiring to be in the #MeToo club. In fact, I’d venture to say that most women, if faced with consistent, ugly sexual harassment would rather just do their jobs—regardless of the wage—if it meant they could do their jobs in peace, free from unlawful harassment. We’re all just trying to make a living, after all.

But, we hear so much more about sexual harassment on a high level, i.e., A-list actresses who regularly grace the covers of national magazine and women at large companies with high social media profiles. I write about these cases, sure, and I think highly visible people do much to keep the scourge of unlawful harassment in the public eye, but, I especially like to draw your attention to women like the hostess at the chain restaurants (which you can read about here), the hotel maids, the factory workers, and the line cooks.

So many women have hidden their stories for so long because they felt their complaints would go unheeded…and in so many cases, they were right. Two years ago, I explained (here) why women may not report sexual harassment. But ignoring complaints of potential harassment is no longer the norm, and more women, not just high-profile ones, have begun to fight back.

Case in Point—

Late last week, a jury in a federal court case in New York awarded $425,000 to a woman who alleged that she was terminated by a chain fast-food restaurant in retaliation for complaining about unremitting harassment by her (male) supervisor. What’s more—the district manager employer ignored her complaints and completely failed to investigate the allegations.

A 25-year-old, married mother of three, the plaintiff was a store manager with a history of working in the fast food industry. Once a week or so, usually on Wednesdays, the plaintiff’s supervisor, who oversaw eight of the chain’s restaurants in the Rochester area, visited the store.

According to the complaint, which you can read here, the supervisor said and did the following:

  • The supervisor called the plaintiff a “b**ch”;
  • The supervisor surmised aloud that the plaintiff “got lucky last night”;
  • The supervisor made sexual comments about the “slippery” neck of a salad dressing bottle while rubbing the bottle and how he could help her change the top to the bottle because “he always gets it in the right place”; and
  • After overhearing plaintiff discuss her “new nipple piercing,” he repeatedly asked to see her breasts.

Think this would be sufficient for a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”)?

The jury sure did.

IS this Sexual Harassment?

Remember, we wrote here and here that sexually charged comments, banter, or “guy talk” made by executives, an employee, or supervisor to another employee may subject an employer to liability under Title VII if it rises to the level of sexual harassment by creating a hostile work environment.

To constitute a hostile work environment, the comments had to have been severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. Further, a reasonable person (like a juror) and the employee herself had to have considered such comments and conduct to be offensive and abusive.

What are some examples?

There are so many. Think sex-based jokes, slurs, epithets or name calling (based on one’s gender, body parts, romantic life, etc.); physical assaults or threats of assaults; intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Yep, making gestures and comments about the neck of a bottle would work.

So would asking to see your direct report’s breasts.

Or calling her a b**ch.

The jury agreed and augmented the plaintiff’s damages to include $275,000 in punitive damages, which exceeds the federal statutory cap for damages in such a lawsuit. You can read about the statutory caps on damages for Title VII claims on the EEOC’s site here.

All that, just for a hostile work environment?

No, actually.

The jury was unimpressed by the employer’s handling of the situation since the restaurant company failed to initiate an investigation, interview witnesses, or even update or re-circulate the company’s anti-harassment policy.

Instead, the district manager thought it would be a better idea to have the plaintiff and harasser meet in a room and “hug it out” when the supervisor denied the conduct of which he was accused.

Yes, that’s a FANTASTIC idea!! Have a scared employee who claims harassment press her body up against the very person who she has complained is harassing her!

Then, because this case is the gift that keeps on giving in its lessons for employers, the plaintiff filed a Charge of Discrimination with the state human rights agency, and the next day—the company fired her!

The New York State Division of Human Rights was not impressed.

And, again, neither was the jury since it awarded this plaintiff damages on her claims of sexual harassment and retaliation.

Employer Takeaway

Low-wage workers are especially at high risk of unlawful harassment—they often have more to lose. Indeed, the plaintiff in this case lost her house and had to begin anti-depressant and anti-anxiety medication due to the events that took place. As a result, the company has certainly paid its dues for its treatment and failure to prevent and then correct sexual harassment.

What can you do to prevent such behavior and costly result to your company?

  • Have a clear sexual harassment policy in your employee handbook. Be specific about misconduct, and give examples. Don’t assume people just “get it.” You want to actually write and say “no sexual or sexist jokes, sexual puns, sexual innuendo, smacks on the butt, grabbing of any body parts, quid pro quo harassment (and what that means), or questions about your coworkers’ sex lives. In other words, give your employees some context;
  • Disseminate the unlawful harassment policy to every single employee throughout your company, and ensure your employees understand it;
  • Provide a written procedure for reporting and investigating claims of unlawful harassment and follow your procedures, documenting the process along the way. Have clear standards for what merits what kind of discipline;
  • Provide regular, interactive training so that employees (supervisors especially) can recognize, respond to, and prevent unlawful harassment (based on sex, race, age, etc.) tailored to your workplace;
  • Ensure that your HR Department knows what to do if an employee reports that (s)he was sexually harassed (or subjected to other unlawful harassment);
  • Encourage reporting of any unlawful harassment and convey, via your policies and practices, that your company prohibits retaliation; and do not retaliate yourself against an employee who reports possible unlawful harassment (like this one did);
  • Maintain a “top-down” culture prohibiting unlawful harassment to demonstrate commitment; and
  • Document, document, document. Confirm face-to-face interactions or telephone conferences with witnesses or potential victims in writing.

The jury verdict was unanimous in this case. #MeToo means business.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.