An employer's delayed investigation of sexual harassment claims was insufficient for it to escape potential liability. The company must now face trial for claims made by a female employee that her male supervisor sexually harassed her and then retaliated against her for making an internal complaint, the 6th U.S. Circuit Court of Appeals ruled.
The plaintiff alleged that she was subject to unwanted comments and touching by a supervisor. The plaintiff also alleged that after she made an internal complaint about the alleged harassment and went on medical leave, she was retaliated against when she was removed from a project, given negative performance reviews and denied a reasonable accommodation upon her return from leave.
The supervisor allegedly regularly made inappropriate sexual comments to the plaintiff and, under false pretenses, brought the plaintiff to a hotel room where he exposed his genitals and asked the plaintiff to touch them. The supervisor held the door closed, temporarily preventing the plaintiff from exiting the room, the plaintiff alleged. Shortly after this incident, the plaintiff expressed how uncomfortable the supervisor made her feel, and the supervisor removed the plaintiff from the project they were both working on. However, the unwelcome comments and touching allegedly continued.
The plaintiff reported the conduct to a second supervisor, and nine days later the second supervisor escalated the issue to HR. About two weeks after that, because HR had not taken any action, the plaintiff called HR to report the conduct. HR interviewed the second supervisor the following day.
One week following that interview, the company removed the harassing supervisor from the workplace. At the same time, the plaintiff took medical leave for back surgery. When she returned from leave, she requested an accommodation of a shortened workweek, which the company denied, and the plaintiff began receiving negative performance reviews.
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The district court had originally dismissed all claims, but the 6th Circuit held that a jury should decide whether the plaintiff was subject to harassment and retaliated against. In doing so, the 6th Circuit explained that the employer did not "exercise reasonable care to prevent and correct any harassing behavior" once the second supervisor learned of the alleged harassment.
The employer did not commence an investigation or do anything to prevent continued harassment, such as separate the plaintiff and alleged harasser, for weeks after the complaint was made, and therefore was not shielded from liability with respect to the sexual harassment claims.
The appeals court also revived several of the plaintiff's retaliation claims. The court held that given the proximity of the plaintiff's complaint and leave to the alleged retaliation, and the employer's questionable explanations for the removal of the plaintiff from the project and the negative performance reviews, a reasonable juror could conclude that the removal and reviews were retaliatory.
The court affirmed the dismissal of the plaintiff's failure to accommodate claim, noting that her request for a shorter workweek would have forced the employer to assign her duties to another employee, which is on its face an unreasonable request. The court also dismissed her retaliatory harassment claims.
Wyatt v. Nissan North America, Inc., 6th Cir., No. 20-5021 (May 28, 2021).
Professional Pointer: Employers should have up-to-date sexual harassment, discrimination, and retaliation policies and trainings, as well as procedures in place for employees to report violations and for supervisors to escalate complaints. Employers should take immediate action, such as the commencement of an investigation and any measures to prevent future harassing conduct, to avail themselves of affirmative defenses.
Daniel J. LaRose is an attorney with Collazo & Keil LLP, the Worklaw® Network member firm in New York City.
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