3 strikes, and this employer is OUT!

Firm must go to trial on same-sex harassment claim.

If one employer's swings and misses can help other employers -- this case is a grand slam.

An executive recruiting firm hired a kid right out of college to work out of its Washington, D.C., office. The Managing Partner of the D.C. office was a longtime partner in the firm, had made tons of money for the firm, and was good buddies with the founder and Chief Executive Officer of the firm. 

The Kid was bisexual, and the Managing Partner knew it. For most of the Kid's tenure with the firm, the MP behaved very inappropriately toward him, and on the record (usually via text messages). According to the Kid, in addition to making sleazy comments, the MP groped him three times. 

The Kid was inappropriate with the MP, too, but only verbally. He said he talked and texted inappropriately because he felt pressured to do it to keep his job.

I won't recount any more details of the alleged harassment in this post, or we'd be here all day, but the court's decision has plenty.

The Kid eventually quit and did not cite sexual harassment as the reason for his resignation. But not long after, he sued the firm for hostile work environment sexual harassment under the D.C. Human Rights Act, negligent supervision, and intentional infliction of emotional distress, among other claims. Apparently the evidence was so overwhelming that the firm had to admit to many of the MP's harassing behaviors. (The MP was eventually terminated.)

Bold move, Cotton

(Woops. I confused baseball with Dodgeball.)

Despite the odds, the firm moved for summary judgment. 

According to the firm, it wasn't liable for the MP's harassment because the Kid did not report the harassment until almost two months after he resigned. The firm contended that it was protected by the Faragher/Ellerth defense.

The Faragher/Ellerth defense is named after two Supreme Court decisions from the late 1990s involving Title VII: Faragher v. City of Boca Raton, and Burlington Industries v. Ellerth. The Court said that when workplace harassment results in a "tangible job detriment" to the victim, the employer is strictly liable for that harassment -- unless the employer can show (1) that it took reasonable measures to prevent and correct workplace harassment, and (2) that the plaintiff unreasonably failed to avail himself of those measures.

In support of its argument that it was entitled to the defense, the firm made three contentions, none of which are entirely out of left field: 

  • First, the Kid didn't suffer a "tangible job detriment" as a result of the harassment.
  • Second, the firm had a policy prohibiting sexual harassment and told employees they could report alleged harassment to any member of management, all the way up to the CEO. The firm also had harassment training that was presented by its outside counsel and was attended by both the Kid and the MP.
  • Third, the Kid didn't report the harassment until after he was long gone.

Decent arguments, but the firm struck out.

Firm strikes out

On the "tangible job detriment," the evidence showed that the MP had promised a bonus to the Kid upon hire if his performance (no, not that kind of performance! I'm talking about work!) met certain conditions. Arguably, the Kid met the conditions for eligibility but didn't get the bonus. And this could have been because he had started rejecting the MP's sexual advances. Oh, and I forgot to mention that the MP was solely responsible for making all of the bonus decisions for employees in his office. Denying a bonus to an otherwise-qualified employee because he refused to grant sexual favors would be a "tangible job detriment" anywhere. Strike one.

On the preventive and corrective measures, there were problems, too. The policy -- like most at the time -- didn't provide any avenue to complain if the victim was not comfortable with taking it to the CEO or to another member of management. This all happened in 2019, as "#MeToo" was just starting to crank up. Since #MeToo, we've recommended that harassment policies allow complaining parties to bypass the entire chain of command, including the CEO, if circumstances warrant. This can be done by letting employees complain to a designated member or members of the employer's Board of Directors, or to an outside ombudsperson. The firm's harassment training consisted of a one-hour session, and the MP walked out early. Then he joked about it, indicating that he didn't take it seriously. Strike two.

On the Kid's failure to report, the court found some problems that precluded summary judgment. First, the MP was the top guy in the office, making it a little awkward to go to him to complain about harassment . . . by him. In any event, the Kid did complain to the MP numerous times (as in, "Stop groping me, you sleaze!") but, amazingly, the MP didn't report the Kid's complaints to anyone. The court found that the Kid had reason to fear going to the CEO, since the CEO and the MP were such close friends. (There was even a seemingly incriminating photo of the CEO with the MP, although they had an innocent explanation for it.) Again, with post-#MeToo hindsight, the firm's harassment policy should have allowed employees to bypass even the CEO. On top of all that, a co-worker quit before the Kid quit and sent an email alleging that the MP was "inappropriate" with the Kid, although she didn't provide details and it wasn't clear that she was referring to anything sexual. Did the firm follow up on that email? No, it did not. So, that's strike three. Yer out!

And for essentially the same reasons, the court refused to grant summary judgment on the negligent supervision and intentional infliction claims.

WHAT "SUMMARY JUDGMENT" MEANS. Summary judgment is a way to end a lawsuit without the expense, hassle, and unpredictability of a trial. When a court rules on a motion for summary judgment, it has to resolve any disputed facts in favor of the "non-movant" -- that is, in favor of the party who is not moving for summary judgment. If the motion is granted, that is the end of the lawsuit subject to the losing party's right to appeal. If the motion is denied, it means the parties will have to go to trial and a jury or judge will have to consider the facts and come to a decision. (In real life, it isn't quite that simple because a motion for summary judgment can be granted as to some claims and denied as to others.) A party can lose on summary judgment but still win at trial, depending on what the jury or judge ultimately decides.

So this firm could still win at trial, even though most of its summary judgment motion was denied. But it appears to be the bottom of the ninth with bases loaded, no outs, and the plaintiff's designated hitter, Hank Greenberg, heading to the plate.

In baseball, you can't settle, but I suspect that this case will.

Yes, I am a fan of the Detroit Tigers. I could be in for a rough year. (Again.)

On a more pleasant note, I wish you all a very happy Passover, Easter, Ramadan, or weekend, as the case may be!

Image credits: Cartoon clip from Baseball Bugs (1946). Other images from flickr, Creative Commons license. First by Bryan Debus (I believe it's a strike being called on Miguel Cabrera), second by Rick Briggs (Ian Kinsler, but I think it may be a hit instead of a strike -- kind of hard to tell).

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
Continue Reading



Back to Page