Legal Report July 2008
U.S. JUDICIAL DECISIONS
RETALIATION. A company that failed to intercede while an employee sexually harassed numerous women over a 10-year period can be held liable for creating a hostile work environment and for the employee’s retaliation against his victims.
In 1993, Diana Chiandet filed a sexual harassment report with management at the Anheuser-Busch plant in Columbus, Ohio. Chiandet claimed that a coworker, Bill Robinson, had made sexually suggestive remarks to her. When Chiandet rebuffed him, Robinson sent her threatening letters.
The company launched an investigation. Though Robinson initially denied writing the letters, he confessed after a handwriting expert determined that he was the author. Based on the investigation, the company fired Robinson a month after Chiandet filed her complaint.
Robinson filed a grievance against the company through his union. The grievance committee found that the company had not proved that it had a just cause for firing Robinson, violating union rules. The committee reinstated Robinson after a six-month suspension.
Jackie Cunningham began working with Robinson in May 1999. Within a few weeks, Cunningham saw Robinson waiting outside her house and caught him following her. Robinson then began harassing Cunningham. He made inappropriate remarks and repeatedly grabbed her. When Cunningham told her union steward that she intended to report Robinson, the steward warned her not to file a complaint, saying that Robinson was capable of violence. After making several requests, Cunningham was moved to a different part of the plant.
During the same time frame, Cherri Hill filed a sexual harassment complaint against Robinson. She informed her supervisor and her union steward that Robinson was touching her and making lewd remarks to her on a daily basis. Robinson threatened to kill her if he lost his job over her sexual harassment claim.
The company began an investigation. While the investigation was ongoing, someone set fire to Hill’s car when it was parked at her house. Hill suspected that Robinson had set the fire and reported her fears to management. They did not investigate the incident but warned Hill that Robinson could sue her for slander if she accused him unjustly. Before the investigation was complete, the company moved Hill to another part of the plant.
Investigators looking into Robinson’s charges also spoke with Cunningham. She was asked if Robinson sexually harassed her. She answered “no” and left. During the subsequent lawsuit, Cunningham testified that she was afraid that Robinson would injure her if she reported him.
After investigating, the company concluded that Robinson had sexually harassed both Hill and Cunningham. Nevertheless, it sent Hill a letter saying that it was unable to substantiate her claims, that there was a corporate policy against retaliation, and that she should contact her manager if she had any other questions. Robinson was not disciplined, and no one discussed his conduct with him.
In December 2000, corporate headquarters received an anonymous letter criticizing the investigation into Robinson’s behavior. The letter said that not only did Robinson harass women, but he also took revenge on them if they complained. Robinson had bragged about getting even with those who reported him, including setting Hill’s car on fire and slashing the tires on another woman’s car.
The environment of fear kept people from speaking out, the letter noted. Though management at the Columbus plant was informed of the letter, the company did not reopen the investigation into Robinson’s conduct.
In May 2003, Robinson began sexually harassing Amanda Hawkins. She made an unofficial report of the incidents, but told her manager that she was afraid to file a formal complaint because of Robinson’s reputation.
The company assigned a new investigator, Shirley Boyd, to the case. Boyd interviewed everyone who worked with Robinson and found two other women, including Kathryn Jackson, who had been harassed by Robinson. One woman reported that Robinson had threatened to beat her if she reported him and that he had thrown bottles at her and flattened her tires every day for two weeks.
Boyd concluded that Robinson should be terminated. The company agreed, and Robinson was fired on June 2, 2003. Robinson was escorted off the property, and the company hired an outside investigator to watch him until his grievance process was complete.
The company also offered to hire security officers for Hawkins and Jackson. Hawkins accepted the offer, but Jackson did not. In July 2003, someone set Jackson’s house on fire. The police opened a criminal investigation with Robinson as a suspect.
In August 2003, Robinson shot and killed his girlfriend, then committed suicide.
Hawkins and three other employees filed a lawsuit against Anheuser-Busch for sexual harassment, creating a hostile work environment, and retaliation. The company requested summary judgment—a hearing based on the facts of a case without a trial.
The U.S. District Court for the Southern District of Ohio granted the summary judgment ruling that the plaintiffs had not proved that Robinson’s conduct was sufficiently severe or pervasive enough to create a hostile work environment, that there was no way the company could have known of the harassment, and that it did take prompt action to correct the situation by moving the women to other work areas. On the retaliation charges, the court noted that the circuit does not recognize the claim of coworker retaliation.
The plaintiffs appealed the decision. The U.S. Court of Appeals for the Sixth Circuit upheld the decision in part but reversed the decision on several counts. It ruled that Cunningham and Hill could pursue their claim of a hostile work environment and that Hill’s retaliation claim could proceed.
The court noted that even independent of the car fire, which could not be conclusively linked to Robinson, both Hill and Cunningham had established sufficient facts to indicate that they were the victims of severe and pervasive harassment.
The court ruled that the company could be held liable for Robinson’s retaliation against Hill, because the company in effect condoned Robinson’s retaliation when it failed to investigate Hill’s claim. According to the court, the company knew of Robinson’s reputation and his prior acts and, thus, had an obligation to investigate the incident. Instead, it scolded Hill for bringing the incident to management’s attention.
The court also addressed the company’s defense that it followed its sexual harassment policy and reassigned the women who accused Robinson. The court noted that a company is on notice when it deals with a serial harasser such as Robinson and has a responsibility to take action to end his pattern of harassment, not just individual instances.
The court added that simply separating the harasser and the accuser is not always sufficient to avoid liability. In this case, the company failed to take other necessary steps, such as meeting with Robinson to tell him his behavior was unacceptable and requiring him to attend sexual harassment counseling.
The court ruled that the case stands out because of the nature of the harassment. In the written opinion of the case, the court noted that sexual harassment laws “would be rendered impotent if employers dealing with serial harassers were allowed to throw up their hands after their first effort to deal with the harasser proved unsuccessful. A company faced with a pattern of harassment must both respond appropriately and take increasingly effective steps designed to end the harassment. The failure to do so suggests indifference and permissiveness on the part of management.” (Hawkins v. Anheuser-Busch, Inc., U.S. Court of Appeals for the Sixth Circuit, No. 07-3235, 2008)
BACKGROUND SCREENING. A federal appeals court has ruled that a plaintiff pursuing a claim under the Fair Credit Reporting Act (FCRA) need not present expert testimony to prove that a background check was conducted in an unreasonable manner.
Prudential Insurance offered Derek Wilson a job contingent on the satisfactory conclusion of a background check. Wilson accepted the offer and was scheduled to begin work on August 12, 2002.
On August 1, Prudential hired Carco Group, Inc., to conduct the background check in Oklahoma, where Wilson lived. Carco in turn hired a company called Search and Find to conduct the check. This company retained an outside researcher to do the work.
The researcher reported back on August 9, saying that the search had resulted in 13 hits but that it was “at a loss” as to what this information meant. This report made its way back to Prudential headquarters. Prudential informed Wilson that he had criminal charges in Oklahoma. Wilson denied this.
Two weeks later, Search and Find faxed Prudential a list of charges on 13 individuals. Six of these people could not have been Wilson, because they had a different name, birthdate, or race.
On September 3, Prudential sent Wilson a letter withdrawing its offer, because it had not received a satisfactory background check. With the letter, Prudential included a copy of the Carco report.
Wilson began his own investigation. He called the Oklahoma State Bureau of Investigation and the Oklahoma State Courts Network. Both of these agencies confirmed that Wilson had no criminal history in the state.
Wilson presented his findings to Prudential, but it refused to reconsider him for the job. Wilson sued Carco for negligent violation of the Fair Credit Reporting Act.
Carco requested summary judgment. In considering the case, the U.S. District Court for the District of Columbia determined that to pursue the lawsuit, Wilson had to present expert witness testimony that the background screening conducted by Carco had not followed “reasonable procedures.” When Wilson told the court that he had no such expert, the court granted Carco’s request for summary judgment. Wilson appealed.
The U.S. Court of Appeals for the District of Columbia Circuit overturned the lower court’s ruling. The court noted that the law required only that the plaintiff present evidence that a consumer reporting agency failed to follow reasonable procedures. In allowing Wilson to pursue his claim, the court noted that “inaccurate credit reports by themselves can be fairly read as evidencing unreasonable procedures.” (Wilson v. Carco Group, Inc., U.S. Court of Appeals for the District of Columbia Circuit, No. 07-7053, 2008)
U.S. FEDERAL LEGISLATION
INFRASTRUCTURE. A bill (H.R. 1662) introduced by Rep. Grace Napolitano (DCA) that will provide funding for site security at some federal facilities has been signed into law by the President (P.L. 110-
The new law will allocate money to facilities operated by the Bureau of Reclamation to hire more security officers and to purchase equipment needed by those officers. The Bureau of Reclamation oversees water resource management and water diversion, delivery, and storage facilities. The agency also controls numerous hydroelectric power stations throughout the United States.
RAIL SAFETY. A bill (S. 1889) introduced by Rep. Frank Lautenberg (D-NJ) designed to improve railroad safety has been approved by the Senate Commerce, Science, and Transportation Committee. The Senate has agreed to consider the measure.
The bill would require that the government develop a long-term railroad safety strategy and a pilot program to reduce railroad safety risks. The government would also be directed to issue regulations requiring railroad carriers, as well as contractors and subcontractors, to develop training programs for employees on relevant federal railroad safety laws. The bill would also establish grant programs for railroad safety technology and railroad infrastructure improvement.
BACKGROUND SCREENING. A bill (H.B. 2380) pending in the Arkansas General Assembly would require that substitute teachers in public schools undergo a criminal background check before being hired. A person could not work as a substitute teacher if he or she were been found guilty of a violent crime or a crime against a child.
IDENTITY THEFT. A new bill (S.B. 1357) pending in the Idaho Legislature would clarify an existing law that creates an identity theft loophole. Current law prohibits the theft and fraudulent misuse of other people’s information including their names and personal data. However, the law does not make it unlawful for an offender to create a new identity from another person’s information using a fictitious name or even his or her own name. This bill would amend current law to make such actions illegal.
TERRORISM. Lawmakers in New Mexico are considering a bill (S.B. 193) that would expand the definitions of terrorism to include the use of weapons of mass destruction and would increase penalties for violations. The definition of terrorism would also change under the new provision. Under current state law, terrorism is defined as “any planned act of violence by an assemblage of two or more persons with the intent to cause damage or injury to another individual or his property.”
Under the new bill, terrorism would be defined as an act of violence or the threat of violence that is likely to cause death or great bodily harm. The act must be intended to threaten or coerce a civilian population or influence official policy. For the intentional damage of property to qualify as an act of terrorism, that damage must exceed $125,000.
This column should not be construed as legal or legislative advice.