Thursday, September 13, 2018

Local Grocery Store Crosses Fine Line Between “Sexual Horseplay” and Sexual Discrimination

A former male employee of a small Chicago grocery store brought suit against his employer alleging several years of ongoing and constant unwanted sexual touching and taunting, and racial discrimination by his male co-workers.

In 2003, Robert Smith began working at the meat counter of Rosebud Farm, a local Chicago grocery store. It was less than three weeks after he started his job there that the other workers behind the meat counter began grabbing both his genitals and buttocks during work. As he continued his job at Rosebud, Smith alleges that this behavior got worse. He claims that his male co-workers not only continued this harassing behavior, but also repeatedly reached down his pants, mimed oral and anal sex, and told him to “go back to Africa.”

While the shop employs individuals of both genders, with 6-7 female employees and 15-16 male employees, testimony by both Smith and other witnesses established that only men were the ones subjected to this kind of behavior at Rosebud. Not one witness recalled a female employee that experienced the same type of treatment as alleged in this case.

Smith made a number of complaints to his supervisor, who not only participated in the taunting once or twice, but Smith claimed had then reduced his work hours and sent him home for nine days without pay after making his complaint. Once Smith’s supervisor received notice that Smith had filed an EEOC charge, he told the employees to stop “goofing off” and quit the “horseplay.” It was then that the behavior of these employees changed. Those who worked the meat counter then began banging their cleavers menacingly at Smith and pointing large knives out of the meat trays in his direction as they passed by him. One day after work, Smith found his car, which was parked in a gated, employee-only lot, with its tires slashed and the windshield cracked. It was because of this behavior that Smith found the working conditions so intolerable that he was forced to quit his job.

After a trial on his gender and race discrimination claims as well as his state claim of violation of  the Illinois Gender Violence Act, the jury returned a verdict for Smith on all claims and awarded him $2.4 million in compensatory and punitive damages, despite Rosebud’s defense that the complained of behavior was merely “sexual horseplay” rather than sexual discrimination. Although the Seventh Circuit Court of Appeals reduced the award to $477,500, it affirmed the verdict.

Employers should take note of a few lessons from this case. One is that juries sometimes like to give away money. If a jury sympathizes with a former employee, especially on charges of outlandish behavior, the award can be quite high. Secondly, it can be a fine line between horseplay and harassment or discrimination – something employees never seem to learn. Thirdly, it is always imperative that if an employee complains that they feel that horseplay has crossed the line or is really harassment in their mind, the employer must investigate and take steps to stop it. While the supervisor here admonished the employees to quit their horseplay, he obviously took few if any steps to ensure that it really ended. It’s always a good idea to check back with the complainant to ensure that the problems are resolved.