Wednesday, February 20, 2008

Evidence of "serial harassment" permitted in sex harassment claim

Yesterday we looked at Hawkins v. Anheuser-Busch's ruling on coworker retaliation. (See 6th Circuit recognizes claim for coworker retaliation). Today, we'll examine another aspect of this opinion, the issue of whether a harassment plaintiff can rely on evidence of the earlier harassment of others by the same coworker. Before we examine the specific issue, it's helpful to look at some additional facts specific to the harassment claims.
Anheuser-Busch first received a complaint of harassment concerning Bill Robinson in 1993. At that time, Diana Chiandet (not a plaintiff in the lawsuit), who worked on the same line as Robinson, complained that she had received 3 harassing and threatening anonymous notes. The notes included gems such as, "If you want something Hot and Hard call me.... They call me Mr. Big Daddy," and "I think it's about time we got together so we can have a good time all nite [sic] long. I no [sic] you like it long and Hard. And I have tools to do that all nite [sic] thing. P.S. Don't worry I will make real good to you. I no [sic] what you like PAIN." Shortly after Chiandet complained her car was sideswiped at work. A handwriting expert confirmed that Robinson was the author of the notes, a fact he also admitted. The brewery terminated his employment, but he was reinstated following a union grievance.
Jackie Cunningham, one of the plaintiffs, first complained about Robinson in 1999. Her allegations included:
  1. During a training session in 1999, Robinson sang a rap song to her with the lyrics: "Baby, won’t you back that thing up," and then held money in his hand and said: "Is that what it's gonna take?"
  2. Robinson tried to put his hand on her shoulder, but she moved away.
  3. Robinson said: "I will suck your p***y but you got to suck my d**k."
  4. Robinson caressed her back and she responded by screaming at him: "Don't touch me."
  5. Robinson told her to come over to his vehicle at work and, when she refused, he chased her around and tried to grab her as she ran away.
  6. Robinson asked her: "Why don't you just suck my d**k?"
  7. Robinson told Cunningham that he was getting rid of his girlfriend, and asked her: "Why don't you just make up your mind?" while trying "to feel on her."
  8. Robinson would harass her "on and off" and would "push on and on."
Cunningham repeatedly complained to her supervisor and was ultimately transferred to a different line.
Cherri Hill starting working on the same line as Robinson in January 2000, and alleged that Robinson began harassing her that November. Her allegations included:
  1. Robinson touched her arms, rubbed her shoulders, and walked up close behind her, all while making "lewd and explicit" comments.
  2. When Hill asked Robinson to stop, he said that he knew she "liked it" and that he "wanted to have sex" with her.
  3. Robinson would walk close to her, touch her behind, and that on one occasion he rubbed against her with "his private area" and grabbed her around the waist.
  4. On three or four occasions Robinson told her "she had big breasts" and a "big butt."
  5. On another occasion, Robinson told her "he wanted to f**k" her and said, "I bet you have some good p***y and I know that you would like this. You should let me take you away from your boyfriend."
  6. Robinson generally made lewd and sexual comments "all the time."
Recall that Hill complained to management and her car was set on fire. The brewery conducted an investigation and concluded that "Robinson did behave in a sexually inappropriate manner with both Cherri Hill and Jackie Cunningham." Remarkably, however, the brewery did not discipline Robinson. Instead, it sent Hill and Cunningham each a letter stating that their allegations were unsubstantiated, that corporate policy prohibited retaliation, and that each could contact management with any questions.
In support of their harassment claims, Cunningham and Hill each sought to rely on evidence of Robinson's earlier harassment of Diana Chiandet. Despite its remoteness in time (6 or 7 years), the Court permitted reliance on the earlier harassment as evidence of Cunningham's and Hill's hostile environment:
When determining the relative weight to assign similar past acts of harassment, the factfinder may consider factors such as the severity and prevalence of the similar acts of harassment, whether the similar acts have been clearly established or are mere conjecture, and the proximity in time of the similar acts to the harassment alleged by the plaintiff.
The degree to which a past act of harassment is relevant to the determination of whether a plaintiff's work environment is hostile is a fact-specific inquiry that requires courts to determine the relevancy of past acts on a case-by-case basis. In general, however, the appropriate weight to be given a prior act will be directly proportional to the act's proximity in time to the harassment at issue in the plaintiff's case. The further back in time the prior act occurred, in other words, the weaker the inference that the act bears a relationship to the current working environment. On the other hand, more weight should be given to acts committed by a serial harrasser if the plaintiff knows that the same individual committed offending acts in the past. This is because a serial harrasser left free to harass again leaves the impression that acts of harassment are tolerated at the workplace and supports a plaintiff's claim that the workplace is both objectively and subjectively hostile.
Both Cunningham and Hill testified at deposition that they had heard about Robinson's prior harassment of Chiandet. The Court permitted the evidence because it gave credence to the plaintiffs' claim that Robinson was a serial harasser who regularly intimidated women at work. While Chiandet's incidents were remote in time, they were entitled to some proportional consideration because of their similarity.
I have serious reservations about the relevance of harassment suffered by a different employee 7 years prior to the at-issue harassment. For one thing, even under Ohio's generous 6-year statute of limitations, Chiandet's ability to file a lawsuit had run out. More to the point though, neither Cunningham nor Hill were even employed at the brewery when the harassment of Chiandet occurred. Nevertheless, the Court permitted the evidence to be considered because the plaintiffs had heard about the harassment, and could process that second-hand information to reach subjective conclusions about the hostility of the work environment. Employers, however, are entitled to some degree of certainty, and it is unreasonable to dredge up 7-year-old allegations that were already investigated, and for which the harasser had already been terminated and reinstated per his labor union. That unreasonableness is magnified by the fact that neither plaintiff was even employed while Chiandet was being harassed.
This case exemplifies the expression "bad facts make bad law." The allegations of harassment were so outrageous, and Anheuser-Busch's lack of response so negligent, that the Court was looking for anything to support its decision. Now, however, companies are faced with the prospect of never being to close the book on old allegations of harassment, as plaintiffs will be able to reach back in time to recycle stale claims into
Tomorrow, we'll finish up our look at Hawkins v. Anheuser-Busch and glean some lessons from the brewery's response and lack of response to the various harassment complaints.

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