Almost 23 years ago, two Hollywood A-list actors, Michael Douglas and Demi Moore, starred in a dramatic film called “Disclosure.” The issue of workplace sexual harassment –- specifically, quid pro quo harassment –- was a key plot point in the film. In the movie, the female boss (Moore’s character) engaged in quid pro quo harassment of her male subordinate employee (Douglas’ character).
A woman who felt harassed at her job by a male co-worker took a cell phone picture to document the harassment to which she was subjected. For that, the employer terminated not the male employee but the woman, alleging that she violated workplace policies regarding taking other employees’ pictures without permission. The evidence the woman had was enough to support a sexual harassment claim, even if it wasn’t enough for a retaliation claim, the 11th Circuit Court of Appeals recently decided.
A recent case from the 6th Circuit Court of Appeals clarifies whether an employee’s verbal complaint to her supervisor about that supervisor’s sexual harassment can, by itself, be enough to constitute engaging in “protected activity” under Title VII. The case ruled that such informal complaints do qualify because any opposition to an unlawful employment practice, such as sexual harassment, is protected, and the law defines “oppose” broadly. This case stands as a clear warning to Tennessee employers that they cannot evade Title VII liability simply because workers do not follow formal procedures for opposing a supervisor’s sexually harassing conduct.
The employer in the case was New Breed Logistics, which operated a warehouse in Memphis. Three female workers in the warehouse’s receiving department accused a supervisor in their department, James Calhoun, of a barrage of incidents of sexual harassment. The employees stated that they repeatedly told Calhoun to stop, but he refused, stating that he would never get into trouble and that he “ran this” department. A male forklift driver backed up significant portions of the women’s assertions.
Several recent cases decided by the 11th Circuit Court of Appeals offer an important lesson to both employers and employees in Georgia when it comes to federal Title VII lawsuits. Namely, the lesson is that there is a wide range of bad behavior that an employer should not condone, even in isolated frequency, but that are still not viable bases for an employee’s Title VII lawsuit. Title VII, as the courts have repeatedly held, does not exist to impose a “general civility code” within the workplace. To be the foundation of a Title VII lawsuit, conduct must be more than isolated incidents, and be more than just rude conduct, but must be a pervasive pattern of harassment that directly ties to the employee’s inclusion in a protected class.
In a case decided earlier this year, a Florida doctor, Cheryl Clark, sued the hospital at which she worked. She accused the chair of her department of discriminating against her as a woman. The chair allegedly told Clark she should not apply for a directorship because was “too confrontational” and “intimidating,” which Clark understood to mean that her conduct was inappropriate for a woman.
In Denmark v. RPM, Inc., Tina Denmark, an African American woman, worked for TCI Powder Coatings as a quality control technician through an agency, The Staffing People, Inc., from 2008 until 2009. During that time, Denmark claimed to have suffered from gender discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964. After she filed her lawsuit against both TCI and The Staffing People, TCI filed a motion for summary judgment. It argued that Denmark failed to satisfy the administrative prerequisite to filing a suit under Title VII, that her claims did not establish a prima facie case for gender discrimination, sexual harassment, or retaliation, and that Denmark failed to meet the burden of raising a dispute as to whether TCI’s reasons for terminating her were just a pretext.
The court examined whether TCI’s claims had merit. Denmark worked through The Staffing People at TCI’s small batch plant in Ellaville, Georgia, before being promoted to work in the main plant. Although Denmark’s job duties were assigned by TCI, she was required to execute a checklist before starting her position that acknowledged The Staffing People’s policies and procedures. Among other things, The Staffing People required Denmark to contact both TCI and The Staffing People if she was ever going to be late for work. The Staffing People permitted one instance of tardiness and one absence in the first 90-day period and each 90-day period thereafter. Should Denmark be terminated from TCI, she would also be terminated from The Staffing People.
In Malphurs v. Cooling Tower Systems, Inc., Amanda Malphurs worked at Cooling Tower Systems in an hourly position from November 2011 to May 2012. Her duties included working in her employer’s warehouse, posting cooling tower lines and other equipment for sale on an auction website, and doing other office work. During this time, Malphurs was allegedly denied overtime compensation for her work beyond eight hours in the day. At the same time, she was allegedly exposed to “frequent, ongoing, and continuous harassing conduct of a sexual nature” by Joe Coates, the sole owner of Cooling Tower Systems. He would require Malphurs to work long hours late into the day allegedly so they could be alone, and when Malphurs requested overtime pay, he refused to compensate her unless she acquiesced to his sexual demands.
Malphurs frequently asked Coates to stop his harassment, but Coates ignored her. As he was her sole boss, she could not turn to anyone else to discipline or terminate him. Finally, unable to cope with the situation any further, Malphurs quit.
In Bosco v. Lincare, Inc., Ms. Bosco filed a complaint alleging unlawful sexual discrimination and harassment in violation of Title VII of the Civil Rights Act of 1964. Bosco claimed that in 2009, her supervisor grabbed her rear and attempted to kiss her, before she rebuffed him. Later that night, her supervisor allegedly sent her a text message asking Bosco to come to his hotel room. After Bosco refused, she claimed that her supervisor instigated a series of acts intended to punish Bosco and to undermine her authority over her subordinates. Bosco then reported her supervisor’s actions to Lincare’s Human Resources Department in early 2010, providing copies of her phone records documenting the text.
Although she was informed that the incident would be investigated, no action was taken toward her supervisor, and his allegedly retaliatory behavior increased. After Bosco failed to meet her 60-day goals, her employment was terminated in July 2010. Bosco then filed for discrimination with the Equal Employment Opportunity Commission (EEOC) before finally filing a lawsuit after receiving her right to sue letter. Continue reading →