September 14, 2009
Recent Sixth Circuit Decision is Instructive Regarding "Hostile Work Environment" Sexual Harassment
The Sixth Circuit decided the case of Gallagher v. C.H. Robinson Worldwide, Inc. on May 22, 2009. This case is very instructive for employers and employees in a fairly common fact scenario in "hostile work environment" sexual harassment cases. The citation is 567 F.3d 263 (6th Cir. 2009).
In the Gallagher case, the female employee found herself in a "locker room" atmosphere, where she was subjected to constant crude language, sexually explicit discussions and jokes, pornography displayed on computer screens, etc. The workplace involved "cubicles" with low walls and no practical way for Gallagher to avoid hearing and seeing what was going on. Some of the offensive conduct was directed at Gallagher, but most of it appears to have been "indiscriminate" (i.e., directed at no one in particular, but rather, just "the way things were" in that office).
The trial court entered a summary judgment ruling for the employer on Gallagher's sexual harassment claim, in part because of the "indiscriminate" nature of the conduct. The Sixth Circuit Court of Appeals reversed and remanded the case for trial. It said that, even when there is "indiscriminate" or "equal opportunity" harassment, when the conduct was sexually explicit and patently degrading to females, it does qualify as behavior "based on sex." In addition, the Sixth Circuit found that the conduct was sufficiently "severe and pervasive" that it made Gallagher's job more difficult, even if she did not suffer a tangible decline in performance. Finally, the Court said that, because the conduct in question involved both a supervisor and co-workers, the employer's defense based upon the employee's failure to utilize all available efforts to report the conduct to the company was insufficient. Gallagher did complain to her supervisor, which provided notice to the company (even though her supervisor's response to her complaints was usually to yell out across the room for the offending employee to "stop it, because Gallagher is upset").
Once again, this case is instructive to employers and employees in a fairly common fact scenario. It will be interesting to see whether the case is actually tried, or whether it settles without a trial, in light of the Sixth Circuit's ruling.