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Two recent employment discrimination decisions in Pennsylvania show that the so-called Faragher/Ellerth defense can cut both ways. In 1998, the U.S. Supreme Court handed down Faragher v. City of Boca Raton and Burlington Industries v. Ellerth — a pair of decisions that were initially touted as major boons to employers because they allow for summary judgment where the employer took prompt corrective action or where the plaintiff failed to take advantage of any anti-harassment policy that might have cured the problem. Last week, two U.S. District Court judges from the Eastern District of Pennsylvania handed down rulings that illustrate both how powerful the defense can be and how it can sometimes fail. In Hare v. H&R Industries, Senior U.S. District Judge James McGirr Kelly refused to dismiss a sexual harassment suit after rejecting a defense argument that because the company had a sexual harassment policy in place, it cannot be liable to an employee who failed to exercise her rights under that policy. Instead, Kelly sided with the plaintiff’s lawyer, who said the company’s policy was inadequate because it would have required the plaintiff to lodge her complaint with her supervisor who is one of the alleged harassers. Attorney Joanne W. Rathgeber of Rathgeber & Alberts in Doylestown, Pa., also said that when Priscilla Hare did complain of harassment, she was simply told to retaliate against her co-workers in kind. Kelly found that the company’s affirmative defense wasn’t strong enough to win summary judgment. “Hare has presented evidence that H&R’s policy was ineffective and that her failure to pursue the policy was reasonable. In addition, as Hare has presented evidence that her termination resulted from harassment, a factual issue exists as to whether H&R is entitled to this defense,” Kelly wrote. Hare was first employed by H&R as an assembler and was eventually transferred to the machine shop where she claims she was subjected to a sexually harassing work environment. The suit says Hare was repeatedly subjected to inappropriate sexual comments and touching, and that rumors circulated around the workplace concerning her sexual activity. She also claims she was exposed to pornography on the screen of a supervisor’s computer; that another supervisor bought her gifts and visited her house; and that co-workers tampered with her tools and machines and passed a nude picture of her around the plant. H&R’s lawyer, Robert A. Rosin, argued that Hare failed to allege harassment that was “pervasive” and “severe” enough to constitute a hostile work environment. But Judge Kelly said the U.S. Supreme Court has instructed trial judges to “consider the social context in which particular behavior occurs when judging the severity of the harassment.” In Oncale v. Sundowner Offshore Services Inc., the high court wrote: “Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing … and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.” Applying that logic to Hare’s case, Kelly found that “the evidence of harassment presented by Hare and H&R creates a factual issue as to whether she was sexually harassed or there was merely roughhousing and teasing in a rough environment.” Hare claims the harassment caused her to start drinking again after she had been sober for several years and that she has since suffered a mental breakdown. But in its summary judgment motion, H&R said it has evidence that Hare had been drinking earlier than she claimed and that her breakdown resulted in inappropriate work activity which, in turn, resulted in her termination. Kelly found that the factual dispute about the effects on Hare must be decided by a jury. H&R also argued that Hare can’t show “respondent superior” liability. But Kelly found that the defense argument was premised on its contention that much of the harassment never took place. A jury must decide the issue, Kelly said, because Hare has evidence that she was given gifts by a supervisor; that when she complained of her treatment she was told to retaliate in kind; and that she was fired in response to her ultimate reaction to the harassing environment. FULLAM DISMISSES CASE But the plaintiffs in Jones v. Shula’s Steakhouse Inc. didn’t fare as well as Hare. Although Senior U.S. District Judge John P. Fullam never cited Faragher or Ellerth — or any other case law — the ghost of the two 1998 cases was clearly present in the decision. In the suit, plaintiffs Christopher Jones and Tonse Moore, both African-American, claim they were employed at the Shula Steakhouse in the Sheraton Hotel as “food runners,” a position that includes tasks usually performed by bus boys, with some additional responsibility for delivering room service to hotel guests. When they were hired in 1998, both Jones and Moore said they wanted to work as food servers, a better-paying job, but were told that no positions existed then. The suit alleged that black workers were consigned to the lower-paying food runner jobs, while white workers were given the more desirable food server posts. The suit also described an incident on New Year’s Eve of 1998 when a white manager got drunk and used racial epithets, including the “N-word.” The Shula Steakhouse’s lawyers — Don A. Innamorato of Reed Smith and Bryant S. McFall of Ogletree Deakins in Dallas — moved for summary judgment, arguing that the manager’s misconduct was quickly disciplined with a reprimand and a warning that future infractions would not be tolerated. The defense team also said that both Jones and Moore were fired for failing to show up for work three days in a row. Plaintiffs’ attorney Merri R. Lane of Philadelphia, argued that the plaintiffs were constructively discharged because their decision to quit was the result of being fed up about the way they were being treated. Fullam found that Shula Steakhouse “has in place an appropriate policy against discrimination of any kind.” With the sole exception of the New Year’s Eve incident, Fullam said, the plaintiffs presented no other evidence of racial discrimination or harassment. Fullam also found that neither Jones nor Moore had ever applied for a server position even though there were occasional openings that were posted on company bulletin boards. The statistics, Fullam said, also showed that blacks held 50 percent of the server positions in October 1998 and by February 1999 held 60 percent of the server jobs. Attorney Lane argued that the restaurant failed to take adequate corrective measures after the New Year’s Eve incident. Although the manager was warned not to repeat his conduct, he was not fired, she said, and his subsequent violations of other company rules resulted in nothing more than a second warning. Lane argued that by limiting its discipline to warnings, the company was showing that it did not intend to enforce its policy against racial discrimination. Fullam flatly rejected Lane’s logic. “In my judgment, this is a complete non sequitur,” Fullam wrote. “It is undisputed that the offending employee was reprimanded and told not to repeat his racially discriminatory conduct. There is no evidence that any further discriminatory actions occurred, either by him or anyone else. That ends the matter,” Fullam wrote. The fact that the company failed to discipline the same employee for “unrelated misconduct” is irrelevant, Fullam said. Fullam found that the two plaintiffs were apparently “unhappy” with their jobs and with the way tips were shared. “They may well have been justified in terminating their employment. But the evidence simply does not show that either plaintiff has a valid claim of racial discrimination under Title VII,” Fullam wrote. Although Fullam never cited Faragher, his dismissal of the suit is clearly premised on the affirmative defense it established. The Faragher court wrote that the defense requires: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

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