A case out of the Second Circuit Court of Appeals (of which, Connecticut is part of) addresses an interesting question:
When a jury finds that sexual harassment has been perpetuated by a single employee, is injunctive (non-monetary) relief required to be issued by the District Court?
The EEOC argued yes and argued that remedies such as preventing the harassing employee from returning to the workplace were appropriate.
Um, there’s a problem in Aisle 3.
The Second Circuit agreed in part, saying that ordinarily a termination of a lone harasser should be enough. But the court said that given the egrigious facts of this particular case, something more should’ve been done to protect the female employees from potential future harassment.
The case, EEOC v. KarenKim, Inc. (d/b/a Paul’s Big M Grocery), can be downloaded here.
There’s a lot of facts to the case, but this summary, by the Outten & Golden Employment Law Blog, captures some of the salient points:
KarenKim is a grocery store whose employees largely consist of teenage female employees. The company is owned and managed by Karen Connors. In 2001, she hired Allen Manwaring as the store manager. In 2006, Connors and Manwaring became romantically involved and had a son together.
At trial, a number of current and former employees testified about Manwaring’s sexual harassment of the female employees, which consisted of verbal and physical harassment. Some of his verbal comments included making comments of a sexual nature to employees and compliments about parts of their body. He told one employee that if he was her boyfriend, he would never “let her out of his sheets” and that “if he was 10 years younger, he would be on top of her.” He also physically harassed the women by touching and massaging them in inappropriate ways and on a daily basis. He would brush up against them to deliberately touch their breasts, put his crotch against their buttocks, breath on their necks, hug them, and squeeze their hips.
Needless to say, a jury found in favor of the EEOC and awarded over $1.25M in punitive damages. The District Court, however, failed to issue any injunctive relief requested by the EEOC. The Second Circuit found that the lower court abused its discretion in doing so.
Although we recognize that, in the ordinary case, terminating a lone sexual harasser may very well be sufficient to eliminate the “cognizable danger” that a defendant-employer will engage in “recurrent violation[s]” of Title VII… this is not an ordinary case.
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. In addition, even if Manwaring is not re-employed at KarenKim, Manwaring’s status as Connors’s fiancé, as well as his relationships with other current KarenKim employees, renders it likely that he will remain a presence at the store. Finally, Connors’s past refusal to adequately respond to multiple credible complaints about Manwaring’s conduct suggests that, so long as Manwaring remains in a romantic relationship with KarenKim’s owner and highest officer, KarenKim will not take adequate remedial measures in response to any future harassment on the part of Manwaring.
Double oy for the employer.
The Court ended its analysis by saying that:
While it is not our role to fashion the specific measures necessary to prevent the recurrence of Manwaring’s misconduct and the resulting hostile work environment at KarenKim, we conclude that, at minimum, the district court exceeded the scope of its discretion in declining to order (a) that KarenKim is prohibited from directly employing Manwaring in the future, and (b) that KarenKim is prohibited from permitting Manwaring to enter its premises.
Is there any type of injunctive relief that is out of bounds? Well, the Second Circuit said the lower court was within its discretion in concluding that “some of the EEOC’s requested relief — such as requiring KarenKim to distribute wallet-sized photographs of Manwaring to its employees, or to hire and pay for an independent monitor to continually review KarenKim’s employment practices and investigate possible instances of sexual harassment ” was overbroad and disproportionate.
The case is an extreme example to be sure. For employers, the takeaway from this case isn’t to prevent such behavior — that should be obvious at this point — but rather to be sure that when harassment doesoccur, that you take significant steps to make sure it doesn’t happen again. Window dressing isn’t enough. What those steps are will depend on the circumstances, but where the employer fails to act, this case demonstrates that the courts will do so.