How far do you have to go to protect an employee from sexual harassment–or any type of harassment for that matter? Let’s go back to basics. Title VII of the Civil Rights Act, employers prohbitis discrimination against applicants or employees based on race, national origin, sex or religion. The US Supreme Court ruled sexual harassment is prohibited discrimination under Title VII in Meritor Savings Bank v Vinson in 1986. I previously posted here about how and when an employer can be liable for harassment by a non-employee. That case however, involved an Assisted Living Facility Resident with dementia that groped and behaved violently toward nursing assistants. So we know that sometimes you need to protect your employees from people who don’t work for you– but again, how far do you have to go? Well, last month Costco heard from the 7th Circuit Court of Appeals that it didn’t do enough for one of its employees in EEOC v Costco Warehouse Co and had to pay $250,000. Read on and we’ll see what we can learn from Costco…
(image from yourpfpro.com)
So here’s what went down: Dawn Suppo worked as a re-shelver at Costco’s warehouse in Glenview, Illinois. Her job specifically involved circulating around the warehouse with a shopping cart and re-shelving items that customers decided not to buy. Starting in mid-2010, a customer began approaching Ms. Suppo, asking invasive, personal questions (e.g., “Where do you live?” “Do you have a boyfriend?”). She tried deflecting him and ignoring him for a few months. When those tactics did not work, she reported her concerns to her manager, who told her to report any future encounters. The customer returned, and the manager and a security officer escorted him out of the store, telling him not to go near Ms. Suppo again. As a precautionary measure, Ms. Suppo called the police. Ms. Suppo’s manager reportedly yelled at her for doing so, telling her she should be “friendly” to the customer.
As you can probably guess, this customer was not so easily deterred. He continued to show up at the store. He continued asking Ms. Suppo invasive personal questions. One time he was caught video recording her with his phone. Other times he made physical contact. After one of the incidents, Ms. Suppo asked if she could be allowed to park closer to the store’s entrance, so she could avoid being in the parking lot alone. Costco denied that request. Not surprisingly, the behavior continued, until Ms. Suppo, on her own, obtained a Stalking No Contact Order from the county circuit court, forbidding the customer from approaching her at her home or place of employment. Apparently Costco decided to start investigating things around this time. Ms. Suppo went on a medical leave of absence after she obtained the Order. Costco then, by way of a letter, told the customer not to shop at the Glenview store again, but to do any future shopping at its Mettawa store. Costco then sent Ms. Suppo a letter, advising that while it could not conclude that the customer’s behavior violated its harassment policy it had advised him to shop elsewhere, and closed its investigation. A few months later, while shopping at Costco’s Mettawa store with her father, Ms. Suppo encountered this same customer, who proceeded to scream profanities at her. Costco then revoked his membership and banned him from all its stores. Costco also fired Ms. Suppo, because her leave of absence exceeded 12 months.
The EEOC sued on behalf of Ms. Suppo, alleging discrimination by Costco, “by creating and tolerating a sexually hostile work environment
of offensive comments of a sexual nature, unwelcome touching, unwelcome advances, and stalking by a customer.” The District Court denied Costco’s motion for summary judgment of the hostile work environment claim, and a jury awarded $250,000 in compensatory damages. Costco appealed the verdict, and the EEOC appealed the denial of back pay. The 7th Circuit affirmed the verdict and sent the case back to the District Court for an award of back pay. Costco argued that the conduct was not sufficiently severe or pervasive to create a hostile work environment. The 7th Court disagreed, noting the stalking behavior and the fact that a County Circuit Court found it serious enough to grant a Stalking No Contact Order. The Court also found that a jury could have found Costco’s investigation and corrective measures “unreasonably weak”. The court also felt that she should have received back pay for at least some of the time that she was on medical leave: “If a reasonable person in Suppo’s shoes would have felt forced by unbearable working conditions to take an unpaid medical leave in September of 2011, then Suppo is entitled to recover back pay for some period of time following the involuntary leave.”
So what are our takeaways?
- Take every complaint of harassment (not just sexual harassment and not just harassment by employees) seriously. That includes harassment by clients/customers.
- Conduct a thorough and prompt investigation of all such complaints.
- If an employee by reason of alleged harassment does not feel safe, take reasonable steps to ensure her/his safety. Costco should not have denied Ms. Suppo’s request to park near the store entrance. If you can’t accommodate a specific request, look for alternatives.
- If an employee feels sufficiently unsafe as to call the police, don’t yell at him/her, and don’t tell employees who are complaining of harassment to be “friendly” to the alleged harasser. (That would seem like something that should go without saying, but this case suggests otherwise.)
- Take appropriate measures and be ready to re-visit those measures if they do not resolve the problem. In this case, Costco could have called the police, and it could have revoked his membership and banned him from all its stores much sooner than it did.
- Consult with legal counsel before you terminate an employee that has complained of harassment or discrimination. (You might want to consult with counsel before any termination just to make sure you haven’t missed something that could come back to bit you later.)
Clearly this is not an exhaustive list, but it should be enough to get one started. Let’s leave it there for now. See you next week.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ