Time & Attendance
By Jon Hyman
Feb. 11, 2016
The harassment was based on sex
Defendant argues that no reasonable jury could find discrimination based on sex because Leonard’s behavior was mere “horseplay” beyond the reach of Title VII.… [W]e cannot accept this self-serving characterization of Leonard’s behavior. “Horseplay” was much discussed at trial, and the jury apparently found that pinching and slapping someone on the buttocks or grinding one’s pelvis into another’s behind goes far beyond horseplay.
The harassment created a hostile work environment
We have long held that “harassment involving an element of physical invasion is more severe than harassing comments alone.”… According to Plaintiff, the three incidents between him and Leonard took place over the course of a few months: about a week separated the first and second incidents, and the third incident occurred a month or more after that. Plaintiff described these incidents as escalating from a slap on the rear, to a painful grab on the rear, to grab by the hips and “hunching,” i.e., briefly simulating sex.
The inadequacy of the employer’s response
Defendant argues that the steps it took were so clearly prompt and appropriate as to entitle it to judgment as a matter of law. Yet Defendant fails to grasp that what it failed to do is just as important.… Defendant did not separate the two men, suspend Leonard pending an investigation, or initiate its investigation in a timely manner; a reasonable jury could find that the failure to take any of these steps or others rendered its response neither prompt nor appropriate in light of what it knew or should have known regarding Leonard’s prior misconduct.
What should you do when an employee complains of harassment? I’ve shared these five steps before, but they are worth repeating.
The employer in Smith v. Rock-Tenn appears to have missed on each of these steps when faced with allegations of clear harassment, and it paid the price. Don’t make the same mistake.
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