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Failure to Act Costs Tennessee Employer in Employee’s Sexual Harassment Case

twiddling_thumbsWhen an employee sues his employer in a sexual harassment case, there are several key pieces that go into that case. The court will look at the harasser’s conduct, as well as the employer’s response. For an employee to win against his employer, he must not only have been harassed, but also his employer’s response must have been improper. In a recent Tennessee case, the Sixth Circuit Court of Appeals upheld a $300,000 jury verdict in favor of an employee. In that case, it was not so much an improper action taken by the employer but an improper inaction that doomed its case.

The employee who sued, Jeffry Smith, worked at Norcross, Ga.-based Rock-Tenn Services, Inc.’s facility in Murfreesboro. Smith suffered multiple acts of harassment from a co-worker, Jim Leonard. Leonard slapped Smith on the rear one day, grabbed Smith’s rear very hard a few days later, and, some time later, came up behind Smith, grabbed his hips, and began basically engaging in a simulated humping session. The cumulative effect of Leonard’s conduct was so severe that Smith began suffering anxiety problems and had to take a leave of absence from work.

After Smith sued the employer for sexual harassment in violation of Title VII, the jury found in his favor and awarded him $300,000 in damages. The employer appealed but was unsuccessful. The U.S. Supreme Court has made it clear that simple male-on-male horseplay or roughhousing is not sexual harassment, which was a centerpiece of the employer’s argument both at trial and on appeal. In this case, the trial court found that pinching a co-worker’s rear, slapping a co-worker’s rear, and grinding one’s genitals into a co-worker’s rear goes far beyond simple horseplay. Such a conclusion, the Sixth Circuit decided, was not unreasonable and did not entitle the employer to a reversal.

Another essential part of holding an employer liable for sexual harassment is proving that the employer’s response was inadequate. In 2013, the Sixth Circuit clarified that, in general, “a response is adequate if it is reasonably calculated to end the harassment.” In Smith’s case, Rock-Tenn’s response fell far short of that standard. Following the first incidents, Smith followed the employer’s (arguably ill-conceived) policy of confronting Leonard directly. When that didn’t work, he approached supervisors at work. At first, the managers decided they could do nothing until Leonard’s supervisor returned from vacation, even though that meant postponing action for more than a week. While that supervisor finished his vacation, the employer decided to send Smith and Leonard back to their regular workspaces, which were obviously in close proximity to each other. Even after Rock-Tenn’s plant supervisor became involved, the employer merely conducted some interviews, including Leonard. Lacking a neutral witness, the employer took Leonard at his word about the incidents and merely gave him a two-day paid suspension.

The appeals court rejected the employer’s assertion that the “steps it took were so clearly prompt and appropriate” that it could not possibly be liable. The problem, as the court noted, was that “what it failed to do is just as important.” In this case, Rock-Tenn at first did nothing for 10 days. It did not suspend Leonard. It did not begin an investigation of Leonard. It did not even separate Smith and Leonard. Any of these inactions could be enough for a reasonable jury to find the employer’s response insufficient and that insufficiency to be enough to trigger liability.

Whether you are an employer or an employee, it is important to know that the law requires employers to take prompt and proper action when presented with a potential case of sexual harassment on the job. For a greater understanding of an employer’s obligation in these situations, talk to the experienced Tennessee sexual harassment attorneys at Mays & Kerr. Our attorneys have many years of experience helping both employers and employees understand an employer’s obligations when it comes to complying with Title VII in the face of a potential sexual harassment issue.

To speak with one of our lawyers about your case, call 1-877-986-5529.

More blog posts:

Tennessee Warehouse Workers’ Complaints to Supervisor about Harassment Enough to Support Title VII Case, Atlanta Employment Attorneys Blog, Oct. 14, 2015

Federal Court in Tennessee Permits Sexual Harassment and Hostile Work Environment Claims to Move Forward, Atlanta Employment Attorneys Blog, July 28, 2014