Sunday, January 09, 2000

Same-sex employee harassment case revisited


BENCHMARKS

BY BEN L. KAUFMAN
The Cincinnati Enquirer

        A year after the U.S. Supreme Court cleared the way for same-sex employee sexual harassment claims, the 6th Circuit has ordered a trial judge to reconsider what “horseplay” comprises when guys are fooling around.

        The case involves five frozen food delivery drivers for Schwan's Sales Enterprises in Winchester, Ky.

        In 1996 and 1997, the men said, sales manager Tim Patrick touched their “private areas,” indulged in “ass grabbing” and asked them for oral sex on a daily basis.

        They said Mr. Patrick tied raises and other personnel decisions to such requests and, when rejected, reduced salaries, lowered performance reviews and made it generally impossible to work.

        Other employees confirmed the offensive conduct but said the drivers did not seem particularly concerned and often acted similarly among themselves.

        Mr. Patrick denied everything.

        U.S. District Judge Karl F. Forest er in Lexington granted pretrial summary judgment to the company. Even if the accusations were true, he said, it did not create the intensely hostile work environment required to take a sexual harassment claim to trial.

        Appellate Judges Gilbert S. Merritt, David A. Nelson and Solomon Oliver Jr. reversed that decision. They said there was enough uncertainty on the central facts that summary judgment was inappropriate and jurors should decide whether Mr. Patrick did as claimed and, if he did, whether it was sexual harassment.

        Drawing on last year's pivotal Supreme Court victory by a tormented worker on an offshore oil rig in the Gulf of Mexico, the 6th Circuit laid out this reasoning:

        • Kentucky's Civil Rights Act and Title VII of the 1964 Civil Rights Act prohibit employers from discriminating on the basis of sex against anyone with respect to terms of employment.

        • The Supreme Court explicitly extended that protection to same-sex harassment in 1998.

        • To be actionable, sexual harassment must be “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” By that, the court meant, the harassment must “create an environment that a reasonable person would find hostile or abusive and the victim must subjectively regard that environment as abusive.”

        • All of the circumstances must be considered, including frequency of the conduct and whether it is physically intimidating or simply an offensive utterance.

        Judge Forester found that any harassment was irregular and these instances were “benign” despite extensive testimony that it was almost daily from each driver's first day on the job.

        Judge Forest concluded that there was no proof that the reported harassment unreasonably interfered with the drivers' ability to work because they spent most of their time on the road, away from Mr. Patrick.

        That narrow conclusion, the 6th Circuit said, “violates the Supreme Court's directive to look to the "totality of the circumstances'” in such cases and mistakenly downplays the impact the conduct might have had.

        “In other words,” Judge Merritt wrote for the unanimous panel, “even if the conduct occurred only briefly each day, the continual day-after-day exposure to this type of behavior may interfere with job performance sufficiently to be actionable.”

Fitness tests examined
        A teacher's appeal has forced the 6th Circuit to say how far mandatory mental and physical fitness-for-duty tests may go without violating the Americans with Disabilities Act (ADA):

        • “There must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.”

        • The exam must be “restricted to discovering whether the employee can continue to fulfill the essential functions of the job.”

        • “It is not an excuse for every wide-ranging assessment of mental or physical debilitation that could conceivably affect the quality of an employee's job performance.”

        Teacher Richard A. Sullivan raised the issue, saying River Valley School District violated the ADA by regarding him as disabled and firing him.

        U.S. District Judge Robert Holmes Bell in Kalamazoo, Mich., granted pretrial summary judgment to the defense and Mr. Sullivan appealed.

        A tenured teacher, Mr. Sullivan began acting differently after a 1995 school board meeting, where he was abusive and disruptive.

        At other times, he revealed confidential student information to a newspaper, criticized the student government faculty sponsor in “inappropriate” language in a letter to the student government president, failed to meet with the superintendent to discuss these incidents, and threatened school board members.

        Mr. Sullivan also refused to undergo the fitness-for-duty exams ordered as a response to those events. He was fired, but the state tenure commission reinstated him with a three-year unpaid suspension.

        When state courts refused to intervene, he sued in federal court in Kalamazoo. He lost there and again in the 6th Circuit.

        An order to take fitness-for-duty exams didn't prove that officials regarded Mr. Sullivan as disabled in a way that violated the ADA, Judges Danny J. Boggs, Martha Craig Daughtrey and Joseph H. McKinney Jr. said. Similarly, there were nondiscriminatory reasons for firing him, and there was no proof he was dismissed because he was perceived as disabled.

        Finally, the court said, his retaliation claim was “logically incoherent” because Mr. Sullivan argued the board ordered him to undergo mental and physical exams in retaliation for refusing to undergo those exams.

Michigan prisons now equal
        After 22 years, federal courts have completed their task of imposing sexual equality on Michigan prisons.

        In 1977, women attacked the disparity in educational, vocational, apprenticeship and work-pass opportunities and access to the courts.

        Two years later, a federal judge agreed and ordered Michigan to create “parity of treatment.”

        As recently as 1995, U.S. District Judge John Feikens said Michigan failed to comply with remedial orders and plans in any substantial way.

        However, in early 1999, new evidence showed that access to the courts was improving and there was sufficient parity of opportunity.

        Hoping it was for the last time, Judges Harry W. Wellford, James L. Ryan and Daughtrey reviewed the case, agreed with Judge Feikens and terminated federal court jurisdiction.

       



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