Current Issue

sex discrimination

A federal appeals court recently upheld a half-million dollar verdict against a small Chicago retailer after concluding that a male employee was the victim of sex discrimination. Although the employer admitted that much of the misconduct occurred, it tried to defend itself by arguing that the behavior was mere “roughhousing” and “horseplay,” and it was not directed at the plaintiff because of his sex. A jury—and the appeals court—disagreed.

In 2003, Robert Smith began working as a butcher for Rosebud Farm, a small grocery store in Chicago. Over the next five years, he encountered unwanted behavior at the hands of male coworkers. According to Smith’s complaint, they consistently subjected him to harassment by grabbing his genitals and buttocks, groping him, reaching down his pants, and miming sexual acts at him, and the court found that Smith’s supervisor not only knew about but also participated in the harassment.

Smith complained to management to no avail. After he filed a legal claim with state and federal agencies, things actually got worse: His car tires were slashed in the company parking lot, his windshield was cracked, and coworkers menacingly banged their meat cleavers and pointed large knives at him. In June 2008, he quit his job because of the intolerable working conditions. Next, he filed a Title VII lawsuit against Rosebud.

After a federal court trial, the jury returned a verdict in Smith’s favor. The jury wanted to award him more than $2.4 million but, due to statutory caps built into Title VII, the court adjusted the verdict and awarded Smith more than $559,000. Rosebud filed an appeal with the Seventh Circuit Court of Appeals and, in August 2018—10 years after he quit his job—the court affirmed the judgment, handing Smith a final victory.

Rosebud’s defense against the claim was based on an interpretation of Title VII of the Civil Rights Act, the main federal employment discrimination statute. It agreed that Smith introduced evidence sufficient to show that he was the victim of severe and pervasive harassment and that management was aware of the misconduct, both of which are necessary elements of any Title VII claim. But it reminded the court that Title VII does not impose a flat ban on all harassment—indeed, the Supreme Court has said the statute does not create a “general civility code for the American workplace.” Instead, Rosebud noted, claimants can only prove Title VII violations if they can show they were harassed because of their sex, and the company argued that the conduct at issue was more along the lines of workplace horseplay.

The Seventh Circuit generally agreed with this premise. “Title VII is an anti-discrimination statute,” it said, “not an anti-harassment statute.” It cited two cases that drew a distinction between “sexual horseplay”—which would not be actionable under Title VII—and “sex discrimination.” In one such case, the court declined to find a Title VII violation regarding sexual behavior in the workplace because the offending coworker in that case was found to have picked on coworkers of either sex.

But in Smith’s case, the court found that the harassment Smith experienced was a form of sex discrimination, pointing out that “only men, and not women, experienced the kind of treatment [Smith] did at Rosebud.” During the time Smith worked at Rosebud, the retailer employed 15 to 16 men and six to seven women, and multiple witnesses testified at trial that only men were groped, taunted and otherwise tormented. “No witness recalled seeing female Rosebud employees subjected to the same treatment,” the court reported. This supported the inference that Smith’s coworkers treated him this way because he was male. As a result, the court upheld the half-million dollar verdict in Smith’s favor.

The lesson to be learned from this case is obvious: Immediately put a stop to any workplace behavior that could be construed as harassing and make sure your managers know how to handle such incidents and harassment complaints. Even if you believe the conduct simply amounts to juvenile horseplay, roughhousing, or locker-room behavior, a jury might one day conclude that the conduct constitutes discrimination.

Managers commonly overlook inappropriate behavior among workers because they believe the interactions are good-natured. Sometimes the victim even laughs along or dismisses the harassment. Your employee might be laughing along as a coping mechanism, or they could decide to use this mistreatment to their advantage at some later point if the relationship sours. Either way, the best course is to deal with any reports of such misconduct swiftly and thoroughly, not letting small matters turn into costly jury verdicts.
Jaklyn Wrigley is an associate with labor and employment law firm Fisher Phillips.