It Is All About How You Handle an Equal Opportunity Harasser: Sixth Circuit Finds Employer Correctly Killed Two Birds with One Stone
Cases involving an equal opportunity harasser are usually entertaining, but Colston v. Cleveland Public Library, (6th Cir. Apr. 15, 2013) is also educational because it demonstrates how an employer can properly get rid of an equal opportunity harasser and defeat discrimination and harassment claims based on the harasser's conduct at the same time.
Plaintiff Mary Jane Colston was, and still is, a union security officer with the Cleveland Public Library ("CPL"). Ms. Colston alleged that the CPL, along with several of its employees, sexually harassed her, retaliated and discriminated against her because of her gender, and was liable to her for intentional infliction of emotional distress. She also charged the CPL with negligently hiring Melvin Abrams, the CPL's former Assistant Chief of Security, against whom the bulk of Ms. Colston's allegations were ultimately directed. The CPL and the individually-named defendants prevailed on all claims at the district court and Sixth Circuit court levels.
Here is what I found most interesting about this case. A person who harasses everyone, male or female, is not harassing or discriminating against someone because of gender. The standard for gender discrimination under Title VII and the Ohio Civil Rights Act, Ohio Revised Code 4412.02 is that to be actionable, the verbal or physical harassment must be "because of sex." Similarly, to establish a hostile work environment, a plaintiff must demonstrate that the harassment was "based on sex." In other words, a plaintiff seeking protection under the discrimination laws must affirmatively establish that he or she was "treated differently than similarly situated" individuals because of gender. If the same demeaning or derogatory conduct is directed at men and women alike, it is not "because of" or "based on" gender and is not actionable.
Ms. Colston cited a few different ways she suffered discrimination and/or a hostile work environment, but none were deemed actionable. Ms. Colston claimed that Mr. Abrams engaged in "unprofessional" behavior by using insulting and profane language and made comments about her physical appearance. Now, if Mr. Abrams had been speaking just to Ms. Colston, referring to just Ms. Colston's physical appearance, or using a gender-specific epithets like "bitch," the courts may have upheld these claims, but that is not what happened. Here, Ms. Colston admitted that Mr. Abrams was insulting and profane to all officers, male and female, and referred to them as "imbeciles" and "idiots," and that he commented on their personal lives and about their manliness and weight. Ms. Colston testified that Mr. Abrams "just basically emasculated the men right in front of me" and that he repeatedly made comments about the physical appearance of other male officers, including that they were overweight and looked sloppy in their uniforms. The good news for Mr. Abrams, and in turn the CPL, is that the courts found that no discrimination against Ms. Colston because of her gender and found that she was not subjected to an unlawful hostile work environment based on her gender.
The bad news for CPL is that it had a rogue, equal opportunity harasser – a bully – on its hands.
But...because it properly addressed the conduct of its equal opportunity harasser, it also defeated the remainder of Ms. Colston's claims. With respect to Ms. Colston's hostile work environment claim, the evidence demonstrated that every time Ms. Colston complained about Mr. Abrams, the CPL responded immediately with an investigation into the matter, which resulted in disciplinary action. In fact, after Ms. Colston’s first complaint, the CPL hired an independent investigator to investigate, which resulted in a five-day unpaid disciplinary sanction for Mr. Abrams. The second time Ms. Colston complained, the CPL hired another independent investigator to investigate. That investigation led to Mr. Abrams being placed on administrative leave; however, he resigned before his pre-termination hearing. Because the CPL properly responded to all of Ms. Colston's complaints, the courts determined that she could not support a claim for hostile work environment.
The Takeaways: This case provides guidance to employers about how to properly respond to complaints of discrimination and harassment. In the event an equal opportunity harasser is identified, it is important that the employer investigate, document and discipline. Taking these steps promptly will help an employer not only identify and get rid of an equal opportunity harasser, but they will help protect against discrimination/harassment claims based on the equal opportunity harasser's conduct.