Smith v. Rock-Tenn ServsIn Smith v. Rock-Tenn Servs.,6th Cir. No. 15-5534 (February 10, 2016), Jeffrey L. Smith (hereafter, "Jeffrey") sued his employer on claims of sexual harassment, wrongful termination, and retaliation under the Tennessee Human Rights Act. Jeffrey later added claims of hostile work environment and constructive discharge under Title VII. The district court granted partial summary judgment to Rock-Tenn on the retaliation and constructive discharge claims under Tennessee law and Title VII but denied summary judgment (dismissing the case as insufficient) on the Title VII and Tennessee Human Rights Act hostile work environment claims.
When Jeffrey was first hired Rock-Tenn gave Jeffrey orientation on safety policies and outlined Rock-Tenn’s sexual harassment policy.1 Jeffrey was harassed and touched by co-worker Jim Leonard. Jeffrey made it clear to Leonard that he wanted this stopped. This was the first step in Rock-Tenn’s sexual harassment policy, which required that the harassed employee must first demand the offending employee stop his behavior before complaining to management.2 According to Defendant's sexual harassment policy, subjects of harassment are supposed to speak directly to their harasser to ask that the conduct be stopped before bringing their concerns to management. This case shows the importance of reading and understanding the sexual harassment policies established by your employer.
Jeffrey’s demands that Leonard stop the harassment did no good, and Leonard kept it up. Rock-Tenn, now informed of Leonard’s repeat offenses, suspended Leonard for 1.5 days, supposedly without pay (though Leonard claimed he was paid). Jeffrey then asked for time off and told Rock-Tenn he would be seeking a lawyer. Shortly after, Jeffrey resigned and filed suit after receiving a right to sue letter from the EEOC. Jeffrey claimed these experiences caused him mental and emotional trauma and loss of sleep.
A jury awarded Jeffrey $307,000. Rock-Tenn asked the trial judge to throw the verdict out as a matter of law and asked for a new trial. These were both denied as to the Title VII claims, but the Tennessee Human Rights Act claims were thrown out because the statute of limitations was exceeded. The district court also reduced the amount of compensatory damages from $307,000 to $300,000 in order to comply with the Title VII cap on statutory damages. Defendant appealed.
The 6th Circuit pointed out that to prevail on a hostile work environment claim, a plaintiff must show that (1) he or she was a member of a protected class; (2) he or she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the charged sexual harassment created a hostile work environment; and (5) the employer is liable. Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006). To establish employer liability where the harasser is a co-worker, a plaintiff must show that the employer knew or should have known of the conduct and failed to take prompt and appropriate corrective action. E.E.O.C. v. Harbert-Yeargin, Inc., 266 F.3d 498, 518 (6th Cir. 2001).
On appeal Rock-Tenn argued that Leonard’s behavior was just "horseplay" and not sexual harassment under Title VII. The 6th Circuit ruled that "viewing the evidence in the light most favorable to Plaintiff Smith and giving him the benefit of all reasonable inferences, as we must, we cannot accept this self-serving characterization of Leonard's behavior. Horseplay including pinching and slapping someone on the buttocks or grinding one's pelvis into another's behind goes far beyond horseplay3. This conclusion is not so unreasonable as to entitle Defendant to judgment as a matter of law."
BOTTOM LINE FROM REVIEWER: Companies should orient their employees on their sexual harassment policy before they begin working for the employer. The employer should require employees to complain to the harasser and the company the same day if possible. Not only is male on male sexual harassment illegal, but pelvic grinding is way beyond mere horseplay. Hearing that argument as a juror would make me stand up and say "really?"
1 (Reviewer’s Comment: most employees in similar situations fail to read the policy which is a mistake.)
2 (Reviewer’s Comment: this makes little sense as employers should immediately intervene and should allow and require employees to immediately complain to them as well as the harasser.)
3 (Reviewer’s Comment: It appears that Rock-Tenn knew it had problems during the trial and hoped they could save a sinking ship on appeal. It is obvious that "grinding one’s pelvis into another’s behind goes far beyond horseplay," and constitutes a hostile work environment, as the 6th Circuit observed. It is only common sense. Would those in charge of running Rock-Tenn write off the pelvic grinding as mere horseplay if it happened to them?)