A U.S. judge has been directed to fashion a remedy that keeps a former grocery store manager away from the women he was sexually harassing, saying that the judge’s earlier refusal to grant such relief was an abuse of discretion.
The U.S. Court of Appeals for the Second Circuit said an injunction sought by the Equal Employment Opportunity Commission was needed to keep the man away from the store because after he was fired he continued to deliver produce there and was the fiancé of the owner.
“Although we recognize that, in the ordinary case, terminating a lone sexual harasser may very well be sufficient to eliminate the ‘cognizable danger’ that a defendant-employer will engage in ‘recurrent violation[s]‘ of Title VII…this is not the ordinary case,” the judges said in a per curiam opinion.
The KarenKim Market in Oswego is owned and operated by Karen Connors. Within months of hiring Allen Manwaring as store manager in 2001, Connors and Manwaring began a romantic relationship. The couple have been engaged since 2006 and have a son together.
The EEOC brought suit after several allegations were made by young women employees that Manwaring touched them inappropriately and made sexually suggestive remarks, and that Connors repeatedly ignored pleas to discipline him until, with the EEOC’s lawsuit pending in 2010, she fired him.
But Manwaring continued to visit the store in his new role as a produce contractor.
A two-week trial in 2011 before Northern District Judge Norman Mordue (See Profile) ended with a jury finding KarenKim liable for sexual harassment and fostering a sexually hostile work environment.
The jury awarded 10 members of the class a total of $10,080 in compensatory damages and $1.25 million in punitive damages. Mordue later ordered the amount paid on the Title VII claims to each member of the class be reduced to the applicable statutory cap of $50,000. But the actual amount of damages paid to each over $50,000 was not reduced, just reallocated to state law claims in the action.
The EEOC applied for an injunction with several requirements, led by an order for KarenKim to keep Manwaring away from the premises. The proposed terms also included that each employee be shown a picture of Manwaring to make sure he was recognized if he entered the store.
Mordue declined, saying the “discriminatory and unlawful actions in this case were isolated instances involving a company manager who is no longer employed with the company and employees who are no longer employed by the company, occurring during a period when the company did not have clearly established anti-harassment policies.”
The EEOC appealed and the Second Circuit heard oral arguments on Aug. 23.
On Oct. 19, the circuit said judges have broad, although not unlimited, discretion to fashion the appropriate relief in a Title VII case, but that Mordue had abused that discretion.
“Notably, in this case, the lone harasser, Manwaring, was not just one supervisory employee among many, but was the Store Manager, with authority over all the defendant-employer’s employees,” the court said. “Moreover, he was and remains in a longstanding romantic relationship with Connors, the owner and highest officer of the defendant-employer.”
“Moreover,” the court said, “the record makes evident that the romantic relationship between Connors and Manwaring was the primary reason why Manwaring’s harassment went unchecked for years, subjecting an entire class of young female KarenKim employees to a sexually hostile working environment.”
Given his relationship with Connors and his connection to current store employees, the court said that, absent an injunction, nothing prevents Connors from rehiring Manwaring, and it was “likely he will remain a presence at the store.”
So the court remanded to Mordue to fashion an injunction as he sees fit, but with the minimal requirements being that KarenKim be prohibited from hiring Manwaring in the future and that “KarenKim is prohibited from permitting Manwaring to enter the premises.”
Katzmann issued a concurring opinion to address a question the opinion did not reach. Katzmann said he believed that, once Title VII liability is found, “the defendant-employer should first bear the burden of proving that equitable relief is not necessary to prevent the unlawful conduct from recurring.”
And if the employer can’t meet that burden, he said, it should be up to the district court in its discretion to decide “which specific forms of injunctive relief are necessary.”
Barbara Sloan argued for the Equal Employment Opportunity Commission.
David Antonucci represented KarenKim.
“Looking back to the original relief requested, I still think it’s a victory for the defendants,” Antonucci said. The EEOC wanted “extensive relief that goes on and on and instead what they got was we wouldn’t rehire him and wouldn’t let him in the store. I would say the lower court’s decision was largely sustained.”
@|Mark Hamblett can be contacted at firstname.lastname@example.org.