Ten women working at the Cook County Jail in Chicago, Illinois, sued the Sheriff’s Office and Cook County for permitting a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. The named plaintiffs sought to represent a class of 2,000 female employees alleging frequent and extreme sexual harassment by male inmates at the Cook County Jail. On March 4, 2021, a three-judge panel for the Seventh Circuit unanimously decertified the class after determining that the lower court abused its discretion by relying on the “peripheral and overbroad” concept of ambient harassment to certify the class. Beyond the lower court’s “primary error” in relying on the ambient harassment theory, the Seventh Circuit found class certification to be inappropriate given the class members’ materially different working environments, which necessitated separate, individualized analyses.
Lower Court Relied on Ambient Harassment Theory to Certify Class
The class was initially certified in August 2019 and encompassed all non-supervisory female employees working at the Cook County Jail. In finding that the class satisfied commonality, typicality, and predominance under Rule 23, the lower court relied heavily on the concept of “ambient harassment,” defined as “the experience of working in an environment highly permeated with sexually offensive and degrading behavior.” Under the ambient harassment theory, class members could be victims of sexual harassment even if the harassment was not directed at them.
Lower Court Failed to Re-Analyze Rule 23 Requirements After Modifying Class
The sheriff appealed the initial certification order, but the Seventh Circuit remanded after the lower court indicated it would grant the employees’ motion to narrow the class. In its second certification order, the lower court excluded nearly 200 class members in light of new evidence, which proved that almost every class member had direct contact with male inmates. In modifying the class, the lower court incorporated its original certification order and indicative ruling, but failed to reanalyze Rule 23’s requirements or resolve the parties’ dispute about whether ambient harassment would remain an issue for the modified class. These failures left the parties in the dark regarding what legally justified the modified class, according to the Seventh Circuit. Plaintiffs understood the lower court’s indicative ruling as disavowing ambient harassment completely while defendants understood ambient harassment to be the “glue” holding the class together.
Problems with Commonality, Typicality and Predominance
Instead of remanding the case and allowing the lower court to supplement its reasoning, the Seventh Circuit took matters into its own hands, finding class certification to be inappropriate under either party’s interpretation. Specifically, the lower court’s treatment of ambient harassment as “one homogeneous phenomenon” overlooked meaningful distinctions among class members’ individual experiences. For example, when assessing the reasonableness of the defendants’ harassment policies, what could be reasonable for one class member (e.g., a law librarian) could be unreasonable for another (e.g., an employee working with inmates in division 10). Additionally, the named plaintiffs, who experienced direct harassment, would have no incentive to place evidence of ambient harassment at the forefront of litigation, making them poor proxies for class members whose claims rise or fall on the ambient harassment theory.
Notwithstanding its ruling, the Seventh Circuit left plaintiffs with some guidance on how to cure these deficiencies. The Court specifically indicated that plaintiffs could create a smaller class comprised of members who have had comparable experiences at the Cook County Jail. Members who work same job, in the same division, with the same male inmates are thus far more likely to succeed on class certification grounds.
