Sixth Circuit Holds Serial Harasser's Conduct Violates Title VII

Four female employees sued Anheuser-Busch arising from sexual harassment claims against a male employee (Robinson) occurring over Robinson’s ten-year span of employment. Each time, the employer investigated the claims internally by interviewing the women and Robinson. After the first reported incident Anheuser tried to fire Robinson but was unable to due to union opposition under the collective bargaining agreement. The investigations never resulted in punishment until Robinson was finally terminated in 2003. The District Court granted summary judgment in Hawkins v Anheuser-Busch, holding that none of the women provided sufficient evidence to establish that the alleged harassment was sufficiently severe or pervasive to create a hostile work environment and that no reasonable juror could conclude the employer knew or should have known of the male employee's harassment or that the employer failed to take prompt action.

According to the Sixth Circuit, for conduct to be “severe and pervasive” it has to be more than offensive and must consist of more than words that have sexual content or connotation. The workplace, rather, has to be “permeated with ‘discriminatory intimidation, ridicule or insult’ sufficiently sever or pervasive to alter the conditions of employment.” Factors such a frequency, physical threats, and how much it interferes with the employees work environment must be considered. The Court pointed out that harassment that is continual or has physical invasion is more likely to be pervasive and severe. Two of the four women had shown enough proof in their depositions to establish that they were harassed continually while at work by Robinson and that he physically invaded them by “rubbing up against them,” which was sufficient to withstand summary judgment on the issue of whether the harassment was severe or pervasive under Title VII.

The Sixth Circuit also clarified that a “fact finder may consider similar acts of harassment of which a plaintiff becomes aware during the course of her employment, even if the harassing acts were directed at others or occurred outside the plaintiff’s presence.” It is the job of the fact-finder to weigh this type of evidence for relevancy; the more proximate in time the harassment is to plaintiff’s case, the more relevant it becomes. These women knew of other female employees who had claimed they had been harassed by Robinson and that knowledge played a part in their feeling afraid to come forward and that the work environment was, in fact, hostile.

The Court went on to address the adequacy of Anheuser’s response to the notice of harassment. Because Robinson was known to be a serial harasser, the employer is liable if its responses were permissive or not reasonable to end the harasser’s pattern of harassment. Based on the facts in this case, the Court held that the employer did act unreasonably when they knew that Robinson was a serial harasser because they did nothing more than move the women to a new line at work. They did not send Robinson to counseling pursuant to company policy and they did not reprimand him or attempt to fire him because of their inability to do so after the first incident of harassment.

Compare the serial harasser in this case to an interesting line of cases in the Michigan appellate courts involving serial harasser Daniel Bennett, a supervisor at the Ford Wixom Plant, in Elezovic v Ford and Bennett (Supreme Court and Court of Appeals on remand and second trip to Supreme Court) and Perez v Ford and Bennett (Court of Appeals and Supreme Court).

Attempting to murder husband will affect share of property division

What was this defendant thinking? In Jackson v Jackson the Court of Appeals affirmed a property division that awarded 97% to the husband and 3% to the wife, after the wife tried to murder her husband with rat poison. She was also having an affair with another man and had conversations with him about what assets she would receive in the event of her husband's death. The trial court held that defendant was at fault for the breakdown of the marriage, her conduct was shocking and egregious, and she should not be allowed to benefit from her wrongdoing.

While the Court of Appeals recognized that fault should not constitute a punitive basis for an inequitable property division, defendant’s conduct was so egregious that it was “appropriate
to weigh fault very heavily in deciding an equitable distribution of the marital estate.” The Court concluded that the wife's argument that the property division was "unfair and inequitable" was meritless.

Supreme Court approves equitable tolling; rule change on horizon

The Michigan Supreme Court has re-confirmed "equitable tolling" for delayed applications for leave to appeal in the Court of Appeals in Beavers v Barton Malow. In that case, the appellant's case had been previously dismissed for failure to timely file appellant's brief and the court reporter certificate. The appellant filed an application for leave to the Supreme Court, which was denied.

By the time of the denied application in the Supreme Court, the one-year time period for delayed applications under MCR 7.205(F)(3) had already passed. However, appellant filed a delayed application in the Court of Appeals, seeking relief under the doctrine of equitable tolling while his case had been previously pending in the Court of Appeals and Supreme Court. The Court of Appeals rejected his argument and appellant filed a second application in the Supreme Court, this time on the equitable tolling issue.

Although the Supreme Court's order allowed the filing of a delayed application for leave beyond the one-year filing period because equitable tolling applied, the Court wants to consider a rule change. Time will tell whether the rule change will incorporate the common law equitable tolling provision, or clarify a party's inability to rely on equitable tolling.