Sixth Circuit Holds Serial Harasser's Conduct Violates Title VII
Four female employees sued Anheuser-Busch arising from sexual harassment claims against a male employee (Robinson) occurring over Robinson’s ten-year span of employment. Each time, the employer investigated the claims internally by interviewing the women and Robinson. After the first reported incident Anheuser tried to fire Robinson but was unable to due to union opposition under the collective bargaining agreement. The investigations never resulted in punishment until Robinson was finally terminated in 2003. The District Court granted summary judgment in Hawkins v Anheuser-Busch, holding that none of the women provided sufficient evidence to establish that the alleged harassment was sufficiently severe or pervasive to create a hostile work environment and that no reasonable juror could conclude the employer knew or should have known of the male employee's harassment or that the employer failed to take prompt action.
According to the Sixth Circuit, for conduct to be “severe and pervasive” it has to be more than offensive and must consist of more than words that have sexual content or connotation. The workplace, rather, has to be “permeated with ‘discriminatory intimidation, ridicule or insult’ sufficiently sever or pervasive to alter the conditions of employment.” Factors such a frequency, physical threats, and how much it interferes with the employees work environment must be considered. The Court pointed out that harassment that is continual or has physical invasion is more likely to be pervasive and severe. Two of the four women had shown enough proof in their depositions to establish that they were harassed continually while at work by Robinson and that he physically invaded them by “rubbing up against them,” which was sufficient to withstand summary judgment on the issue of whether the harassment was severe or pervasive under Title VII.
The Sixth Circuit also clarified that a “fact finder may consider similar acts of harassment of which a plaintiff becomes aware during the course of her employment, even if the harassing acts were directed at others or occurred outside the plaintiff’s presence.” It is the job of the fact-finder to weigh this type of evidence for relevancy; the more proximate in time the harassment is to plaintiff’s case, the more relevant it becomes. These women knew of other female employees who had claimed they had been harassed by Robinson and that knowledge played a part in their feeling afraid to come forward and that the work environment was, in fact, hostile.
The Court went on to address the adequacy of Anheuser’s response to the notice of harassment. Because Robinson was known to be a serial harasser, the employer is liable if its responses were permissive or not reasonable to end the harasser’s pattern of harassment. Based on the facts in this case, the Court held that the employer did act unreasonably when they knew that Robinson was a serial harasser because they did nothing more than move the women to a new line at work. They did not send Robinson to counseling pursuant to company policy and they did not reprimand him or attempt to fire him because of their inability to do so after the first incident of harassment.
Compare the serial harasser in this case to an interesting line of cases in the Michigan appellate courts involving serial harasser Daniel Bennett, a supervisor at the Ford Wixom Plant, in Elezovic v Ford and Bennett (Supreme Court and Court of Appeals on remand and second trip to Supreme Court) and Perez v Ford and Bennett (Court of Appeals and Supreme Court).
