On March 25, 2014 the EEOC announced a settlement of a sexual harassment case against Wal-Mart. Most employers do not want to be seen as tolerating sexual harassment. Wal-Mart is probably no exception. Now, we’ve had Wal-Mart under somewhat of a microscope lately (click here, here, here , here and here for review) in our continuing quest to learn some employment law do’s and don’ts. With that said however, Wal-Mart has faced its share of lawsuits in this area too. They say that experience — including someone else’s experience– is often the best teacher. While I don’t know who “they” are, this week let’s see how we can let Wal-Mart’s experience dealing with sexual harassment lawsuits teach employers some lessons after the jump…
The case referred to before the jump is EEOC v. Wal-Mart Stores, East No. 5:13-cv-795-SL. Jamie Wells was an intellectually disabled sales associate at Wal-Mart’s store No. 1911 in Akron, Ohio. According to the EEOC, Wal-Mart for at least five years, allowed co-worker Francis Cameron to subject Ms. Wells to “unauthorized, non-consensual, and harmful physical and sexual contact”. According to court documents, Wells’ intellectual abilities were such that she was incapable of consent. What’s worse though is that Wal-Mart allegedly knew about the behavior, in 2005, the year it all started! Its response: it censured Cameron and retained him at the store. Five years later, Wells herself reported sexual harassment by Cameron. Wal-Mart’s response: it fired Cameron three days later—and it fired Wells eleven days after she reported the harassment. The lawsuit alleged assault, battery, discrimination, retaliation and wrongful termination. Wal-Mart and the EEOC settled for $363,419.00. Wal-Mart also agreed to provide sexual harassment training to its managers at store #1911 and to all HR employees responsible for that store. The required training includes prevention of sexual harassment to intellectually disabled employees. The settlement also required Wal-Mart to post a notice as to employee rights and employer obligations under Title VII and to submit reports to the EEOC at regular intervals for three years. While you probably don’t need me to point out the lessons here I’ll come back to that part shortly.
In EEOC v. Wal-Mart Stores of Texas, LLC , Case No.: 7:10-CV-118 (U.S. Dist. Court, Western District of Texas 2011) a male security guard allegedly harassed Paula Barstad, an overnight stocker at Wal-Mart’s Midland, Texas store, with unwanted physical touching and verbal remarks. Barstad submitted at least two written and many oral complaints, which Wal-Mart’s management allegedly ignored. Wal-Mart settled the case for $27,500.00.
Jorge Perez-Cordero v. Wal-Mart Stores, Puerto Rico, Inc., No. 09-2317 (1st Cir. Aug. 26, 2011) involved harassment of a male employee by a female supervisor. Mr. Perez-Cordero worked as a butcher at Wal-Mart’s Humacao, Puerto Rico store since 1998. In 2000 Madeleine Santiago became his team leader and had some supervisory authority over him. Ms. Santiago made romantic overtures toward Perez-Cordero and subjected him to unwanted physical contact and embarrassing sexual remarks, . Perez-Cordero rejected Ms. Santiago’s advances, and Santiago retaliated by assigning him the least desirable tasks, excluding him from meetings and training opportunities and behaving in a verbally abusive manner toward him. When Perez-Cordero complained, a supervisor suggested he go out with Ms. Santiago and “take advantage of the opportunity”. Perez-Cordero was also told it was “easier to find a new butcher than a new team leader”. Perez-Cordero filed suit in 2001. The District Court granted summary judgment in favor of Wal-Mart. The First Circuit Court of Appeals unanimously reversed in August 2011 (yes, this case was pending 10 years and had not even gotten to trial) compelling Wal-Mart to defend a sexual harassment and retaliation case. Apparently this case is still pending.
The EEOC also sued Wal-Mart for alleged sexual harassment by the manager of its Brandenton, Florida store twice between 2004 and 2005. In the first case, two female managers alleged harassment by a department manager, specifically, sexually suggestive comments, exposing himself and groping. In the second case, an assistant manager in the same store harassed a female sales associate by propositioning her, touching her and subjecting her to vulgar language. Wal-Mart settled both cases for $315,000 in June 2006.
An earlier case, Kimzee v. Wal-Mart Stores, Inc., 107 F.3d 568, 578 (8th Circuit 1997) shows that allegations of both allowing and not responding to sexual harassment complaints are not new for Wal-Mart. Ms. Kimzee was subjected to sexually suggestive comments and gestures, kicking, name-calling, being followed around the store and many other blatantly harassing behaviors. Kimzee complained multiple times to management, and the record showed that no manager ever investigated any of the complaints. The jury awarded Ms. Kimzee $50 million in punitive damages. The District Court judge found that award excessive and reduced it to $5 million. Both sides appealed. The 8th Circuit Court of Appeals, while finding the conduct to be sufficiently egregious to justify punitive damages, reduced the punitive damages award to $350,000.00.
What big-picture patterns and issues emerge from these six cases in different states and regions within the United States or U.S. territories? Despite having an anti-sexual harassment policy, Wal-Mart either did nothing or failed to adequately respond to allegations over a period of time. In at least two cases there were indications that management either received no or inadequate training on the company’s sexual harassment policy. The biggest take-away: Take sexual harassment allegations seriously!!! Yes, every employer should have a sexual harassment policy in place. That however, is not enough. Employers must provide manager training on those policies and must enforce them. Employers who fail to do so can end up in the same place Wal-Mart has in any or all of the above six cases.
What can Wal-Mart can teach employers about how to avoid or minimize occurrences of religious discrimination claims? Join The Emplawyerologist next week and find out!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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