U.S. Court Abused Discretion in Sex Harassment Case: Appeals court

By Judy Greenwald

Oct. 23, 2012

In a move described as unusual, a federal appellate court has ruled that a federal district court abused its discretion when it refused to issue an injunction that would have barred a sexual harasser from continuing contact with his victims.

According to the Oct. 19 ruling in Equal Employment Opportunity Commission v. KarenKim Inc. by the 2nd U.S. Circuit Court of Appeals in New York, KarenKim operates Paul’s Big M Grocery store in Oswego, New York, which is owned by Karen Connors. In January 2001, KarenKim hired Allen Manwaring as store manager. Within months, he and Connors became romantically involved. They have been engaged since 2006 and have a young son together.

Manwaring was eventually fired from his position as store manager but became a produce contractor for the store. The firm was charged in connection with Manwaring’s sexual harassment of the store’s teenage female workers. Following a January 2011 trial, a jury awarded 10 plaintiffs $10,080 in compensatory damages and $1.25 million in punitive damages.

After the trial, the EEOC asked the U.S. District Court for the Northern District of New York in Albany to issue a broad injunction against KarenKim that included barring Manwaring from entering the store. The EEOC contended the injunction was necessary because the firm had not introduced adequate measures to ensure the harassment would not continue, the appellate court said.

The EEOC said Connors and Manwaring remained in a romantic relationship, and Manwaring continued to be in the store as the produce contractor. “In addition, the EEOC noted that, absent an injunction, there is no legal bar to KarenKim rehiring Manwaring,” said the appellate court.

But in June 2011, Judge Norman A. Mordue denied the EEOC’s request, concluding the requested relief “was unnecessary and overly burdensome,” the appellate court said. The EEOC appealed that ruling.

The three-judge appellate court panel held “the district court abused its discretion insofar as it denied the EEOC’s request for injunctive relief specifically directed toward ensuring that Manwaring is no longer in a position to sexually harass KarenKim employees.”

“Although we recognize that, in the ordinary case, terminating a lone sexual harasser may very well be sufficient … this is not an ordinary case,” said the ruling.

“Notably, in this case, the lone harasser, Manwaring, was not just one supervisory employee among many, but was the store manager, with authority over all the defendant-employer’s employees. Moreover, he was and remains in a longstanding romantic relationship with Connors, the owner and highest officer of the defendant-employer.

“Moreover, the record makes evident that this romantic relationship between Connors and Manwaring was the primary reason why Manwaring’s harassment went unchecked for years, subjecting an entire class of young female KarenKim employees to a sexually hostile working environment. Absent an injunction, nothing prevents Connors from once again hiring Manwaring as an employee.”

The appellate court also said “at a minimum, the district court exceeded the scope of its discretion” in declining to order that KarenKim be prohibited from directly employing Manwaring in the future, and that the firm be prohibited from permitting Manwaring to enter its premises. It remanded the case for further proceedings consistent with its opinion.

Commenting on the ruling, Richard B. Cohen, a partner with Fox Rothschild L.L.P. in New York, said “what I found fascinating is not so much what the lower court decided but that the appeals court reversed and pretty much barred this fellow from entering the premises. That’s about as strong an injunction as you could get, it seems to me.”

Courts “have the power to fashion almost any kind of remedy,” but most involve putting in place anti-harassment policies, although perhaps in this case the remedy was needed, Cohen said.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. Comment below or email

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Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management.

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