While one may the loneliest number, it is also a number that can be quite costly for employers when it comes to defending a sexual harassment lawsuit under a recent ruling from the Sixth Circuit Court of Appeals.
Specifically, on July 24, 2015, a trial court’s decision was reversed, which allowed a female dining services employee at Oberlin College in Ohio to proceed to trial with her state law sexual harassment claim. This claim arose out of a single incident – albeit an offensive incident – in which a male co-worker allegedly placed his pelvic area against her backside (Ault v. Oberlin College 7/24/15).
In reversing the trial court, the Sixth Circuit found that a reasonable jury could conclude that the alleged physical invasion of the plaintiff’s personal space was sufficiently severe by itself to create a sexually hostile work environment under Ohio law.
Also, the appeals court concluded that the jury will also be required to determine whether Oberlin exercised reasonable care to prevent the alleged harassment. In this regard, plaintiff had complained about the alleged harasser in 2011, but the college didn’t attempt to remove him from campus until five months later, when it heard from plaintiff’s lawyer, the court said. Further, the jury will also be required to determine whether the plaintiff unreasonably failed to take advantage of the college’s anti-harassment procedures.
One Incident Enough for Jury Trial to Determine Harassment
For Michigan employers, it is important to note that this decision arose under Ohio law. But it is also important to realize that the Court noted Ohio law is similar to the federal anti-discrimination law, Title VII of the 1964 Civil Rights Act. And under that law – which applies to Michigan employers – an employee can use a single incident to prove sufficiently severe or pervasive harassment in order to maintain a hostile work environment claim.
In other words, one “extremely serious” but isolated incident may be enough to get a sexual harassment claim past a motion for summary judgment and in front of a jury. For this reason, it is critical for an employer to meaningfully address every single incident of alleged harassment and pursuant to your company’s anti-harassment policies and procedures. Such policies should make it clear:
- The company is committed to providing a work environment that does not tolerate harassment;
- Instances of harassment will be promptly investigated and the company will address all reported allegations of harassment;
- The company will take appropriate disciplinary action; and
- The Company will not permit retaliation against an employee for filing a complaint of harassment or cooperating in a harassment investigation.
Also, it is important to remind employees, especially in your company’s HR policies and manuals, that they should not assume the company and its managers are aware of harassment issues. Instead, it is the responsibility of each individual to bring an issue or concern about harassment to the appropriate person so that it can be properly investigated and resolved.