EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 53 behavior, those same stereotypes could cause superiors and coworkers to treat women in the workplace differently, and therefore give rise to a sexual harassment claim. 392 b. Establishing Employer Liability In addition to moving the law with respect to what counts as harassing conduct, the EEOC has also shaped the law as it relates to establishing when an employer can be held liable for the harassing conduct of its employees. For example, in EEOC v. Mediacom Communications Corp. , 393 the EEOC brought a lawsuit on behalf of several call center employees who alleged that they had been sexually harassed by a male coworker and that the employer had not done enough to put a stop to the offensive conduct. The employer argued that it could not be liable for the co-worker’s conduct because it took appropriate and prompt remedial conduct, including moving the women’s workstations and conducting investigations of the conduct. The court explained that the proper legal standard for determining an employer’s liability for sexual harassment perpetrated by a co-worker is if the employer was negligent in controlling working conditions. 394 In this case, the court concluded that there were material issues of fact that required resolution by a jury. Among other things, the employer took no immediate action after the first complaint of misconduct and that misconduct continued. Even after it had met with the alleged perpetrator, the company still did nothing, declaring it a “he said she said” scenario. 395 And even after the employer moved the women’s workstations, it did not punish the alleged perpetrator or take other steps to ensure that the unwelcome conduct did not continue. The court concluded that: “ There is some evidence that [employer] responded to Plaintiffs' allegations of harassment. However, the timing and sufficiency of that response presents a question of fact that must be resolved by jury.” 396 Similarly, in EEOC v. Dolgencorp, LLC , 397 the EEOC brought an action alleging that the Defendant discriminated against its female employee by sexually harassing and constructively discharging her. The charging party alleged that the store manager at the location where she worked subjected her to unwanted conduct, including making comments about “sausages,” turning her head toward his crotch when she was stocking shelves, attempting to massage her shoulders, and commenting on her breasts. 398 The court examined the employer’s Faragher/Ellerth defense, in which the employer argued that it had exercised reasonable care to prevent and correct any harassing behavior and the charging party unreasonably failed to take advantage of the corrective opportunities. 399 Finding that a reasonable jury could disagree about whether the charging party unreasonably failed to take advantage of the corrective measures in place by Defendant, the court denied the motion as to the EEOC’s harassment claim: “Given the compressed time period for all of the conduct in this case, a jury could conclude that [charging party’s] brief delay before reporting to Human Resources, within the first month of her employment, was reasonable. Thus, the question of whether [employer] can properly avail itself of the Faragher/Ellerth defense presents an issue for the jury.” 400 392 Id. The Fourth Circuit also held that the alleged harassment was severe and pervasive enough that it had altered the conditions of plaintiff’s employment and created an abusive atmosphere. Accordingly, plaintiff had adequately alleged a plausible claim for hostile work environment sex discrimination. Id. at 305. 393 EEOC v. Mediacom Communications Corp. , No. 7:18-CV166, 2021 WL 1011897 (M.D. Ga. Mar. 16, 2021). 394 Id. at *17. 395 Id. 396 Id. 397 EEOC v. Dolgencorp, LLC , No. 18-CV-2956, 2020 WL 1285538 (D. Md. Mar. 18, 2020). 398 Id. at *1-2. The charging party complained to the store manager of another store, who stated that she had heard other similar rumors involving charging party’s supervisor. The store manager advised charging party to report the conduct to HR and transfer stores. HR began investigating the allegations and transferred charging party. Id. at *2. After charging party transferred stores, her previous supervisor arrived one day to help prepare the store for a visit from a corporate executive. Upon seeing her previous supervisor, charging party resigned. Id. The investigation into the allegations lasted two months and, while the employer could not substantiate the conduct, it informed the supervisor that any further misconduct would result in termination. Id. at *3. 399 Id. at *4-5. 400 Id. at *5. See also EEOC v. Safie Specialty Foods Co., Inc. , No. 18-CV-13270, 2019 WL 5734377, at *13 (E.D. Mich. Nov. 5, 2019) (holding that the EEOC had established a prima facie case that sexual harassment was severe and pervasive enough to constitute a hostile work environment, and that it had presented sufficient evidence that the employer knew or should have known