EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 51 day, a couple times a day, for five out of the six weeks they drove together,” among other things. 375 The employer pointed to text messages showing that the charging party had herself use sexually charged language while working on the truck and had even told her co-driver about a sexual encounter with her boyfriend and had voluntarily asked him to join her at a bar . 376 The court held that this was not sufficient for the court to dismiss the EEOC’s claims on summary judgment. “The text messages cited by [employer] do not definitively show that [charging party] was inviting [co-drivers] daily request for sex. To the contrary, some of her text messages show that she affirmatively told [co-driver] she was not interested in a sexual relationship with him and that she wanted to keep the relationship focused on making money.” 377 Similarly, in EEOC v. Magneti Marelli of Tennessee, LLC , 378 the EEOC brought a representative action on behalf of female employees in a manufacturing plant alleging that a male production supervisor engaged in sexual harassment of the employees. The EEOC asserted that the production supervisor created a hostile work environment for employees by constantly telling female employees to call him “Big Daddy”; frequently massaging women’s shoulders and down their backs; whispering “you know you like that” to them; and singing sexually explicit song lyrics . 379 The court found that a reasonable jury could find that the claimants were subject to words and actions based on their sex and that the supervisor’s conduct was severe or pervasive enough that it rose to the level of unlawful harassment: “There has been a sea change over the last quarter of a century in what is now acceptable workplace conduct and what is understood as unlawful harassment. . . . In the light most favorable to the EEOC, [supervisor’s] comments and conduct was objectively offensive sexual harassment.” 380 The court also held there could be a basis for employer liability and therefore denied the employer’s motion for summary judgment and granted the EEOC’s partial motion for summary judgment. However, in EEOC v. Appalachian Power Co. , 381 the U.S. District Court for the Western District of Virginia held that conduct and comments that were consistent with a “workplace crush,” although unwanted and bothersome to an employee, were insufficient to establish a hostile work environment claim. In that case, a temporary administrative worker at a power company alleged claims of hostile work environment sex discrimination, quid pro quo discrimination, and retaliation. 382 The District Court held that the totality of those circumstances did not rise to the level of an objectively hostile working environment. 383 According to the District Court, “expressing romantic interest in a coworker or subordinate or asking them out is not 375 Id. at *1. The EEOC also alleged that the charging party’s co-driver had insinuated that he had killed his wife and told the charging party that she would lose her job if she got off the truck, causing the charging party to feel physically threatened at work. The employer argued that the EEOC could not establish that the co-driver’s behavior was unwelcome, or that the harassment was so severe or pervasive that it affected the charging party’s terms, conditions, or privileges of employment. 376 Id. at *2. 377 Id. The court similarly held that the record did not conclusively show a lack of severity or pervasiveness. The court noted that it was undisputed that the co-driver requested sex from the charging party more than once a day for several weeks and that the conduct alleged appeared to go beyond the type of “passing rudeness or unpleasantness inherent in the ‘rough edges’ of day-to-day life.” Id. at *3. The court also rejected the employer’s argument that the EEOC could not establish severity because the co-driver had never touched the charging party physically. The court held that the law is clear that an employee need not be touched to sustain a sexual harassment claim. Id. at *4. The court concluded: “[a]lthough the evidence may show differently at trial, the court cannot conclude as a matter of law on the present record that [co-driver’s] conduct was not severe or pervasive enough to sustain a sexual harassment claim.” Id. 378 EEOC v. Magneti Marelli of Tennessee, LLC , No, 1:18-CV-74, 2020 WL 918785 (M.D. Tenn. Feb. 26, 2020). 379 Id. at *1. 380 Id. at *5. 381 EEOC v. Appalachian Power Co. , No. 1:18-CV-35, 2019 WL 4644549 (W.D. Va. Sept. 24, 2019). 382 The plaintiff testified that her supervisor repeatedly made inappropriate sexual comments about her, gave her gifts, including substantial monetary gifts, repeatedly declared his love for her, and became jealous and angry when she was around other men. After this conduct had gone on for several months, her supervisor sent her a text message saying that he wanted to take her out and treat her like a queen. Id. at *2. She did not respond to that text message. But when she next arrived at work, her supervisor confronted her about not responding to his text message and, when she tried to walk away, followed her down the hallway while making sexually explicit comments. Id. When she turned around to tell him to stop (“I’m not putting up with your shit today”), he terminated her on the spot. Id. 383 Id. at *6. Among other things, the court held that the messages, conduct, and comments that plaintiff was subjected to were ambiguous in nature, and that a discriminatory intent was belied by the fact that there was no evidence that plaintiff’s supervisor exhibited any hostility toward women. Id.