Same Sex Harassment and the EEOC’s Latest Procedures

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By:  Claudia D. Orr

 

There are two recent developments of note:  a recent 6th Circuit case involving male on male harassment and the Equal Employment Opportunity Commission’s newly implemented nationwide procedure for the release of information to charging parties.  Let’s start with the case.

In Smith v Rock-Tenn Services, the male plaintiff was subjected to a slap on the buttocks by coworker Jim Leonard (which was rebuked), followed a week later by a grab of the buttocks so hard that his “tail was actually sore.”  Plaintiff grabbed Leonard’s arm, put his finger in his face and demanded that the touching stop.  Because Rock-Tenn’s harassment policy requires an employee to first talk to the harasser, plaintiff did not report either incident to management.

A month later, when plaintiff was bending over some boxes, Leonard grabbed him by the hips and started “hunching” on him with his “privates” up against plaintiff’s “tail”.  Plaintiff grabbed Leonard by the throat and gave him a “blessing” out. Plaintiff reported the incidents to his supervisor and plant superintendent Scott Keck was also informed by a coworker.  Keck, however, told plaintiff that “nothing could be done until the following Friday because his supervisor (the operations manager) was on vacation that week.  In the interim, plaintiff had to continue working near Leonard and both men were actually sent to the hospital together for a hearing test.

Plaintiff went on a leave of absence which was intended to be temporary, but he never returned to work.  In his absence, an investigation was done, but the procedure in the employee handbook was not followed.   There were no witness statements taken or an investigation report prepared, only one page of handwritten notes. The HR manager, plant superintendent and operations manager all recommended discharge, but the general manager decided to suspend Leonard for a day and a half.  The general manager later admitted that he did not take into consideration other incidents that came to light during the investigation.  Leonard was eventually fired when he admitted to several incidents during his deposition in this case.

The jury found for plaintiff despite Rock-Tenn’s characterization of the incidents as “horseplay.”   On appeal, the verdict was affirmed.

A primary defense for an employer in such cases is that it took prompt and appropriate remedial action once it learned of the harassment.  Rock-Tenn argued that it conducted an investigation and suspended Leonard. But the court was unimpressed, stating Rock-Tenn “fails to grasp that what it failed to do is just as important.” It then noted that, after Rock-Tenn became aware of the incidents, it failed to act for ten days.  Rock-Tenn “did not separate the two men, suspend Leonard pending an investigation, or initiate its investigation in a timely manner…”  Thus, the jury reasonably found that the response was neither prompt nor appropriate.

This case emphasizes the importance of following your own harassment policy and procedure and doing so in a timely, prompt, manner.  Written witness statements must be taken and the complainant and accused should be separated. Finally, a report should be prepared and appropriate discipline imposed. As the court pointed out, “an element of physical invasion is more severe than harassing comments alone”.   And, the employer should always consider prior or other harassment complaints that have been made against the accused.

The other important development concerns the EEOC’s new nationwide procedure for releasing information during its investigation. Specifically, if the charging party requests a copy of the employer’s position statement, the EEOC will now produce it and allow the charging parting to submit a response within 20 days.  However, the charging party’s response “will not be provided to [the employer] during the investigation.”  Given this, the procedure allows the employer to submit documentation it deems confidential marked as such.  The EEOC will then review it and it “may redact confidential information as necessary prior to releasing the information” to the charging party (emphasis added).

The procedures apply to requests for position statements made on or after January 1, 2016. The employer is only able to obtain information submitted by the charging party after the charge is resolved and a lawsuit is filed with similar allegations. For further information concerning this new procedure, click on this link:   http://www.eeoc.gov/eeoc/newsroom/release/position_statement_procedures.cfm

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863.  http://www.plunkettcooney.com/people-105.html. 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2016.