A case with fairly terrifying facts out of the Sixth Circuit shows clearly that a company can be liable for retaliation by a coworker with no managerial responsibility, even when the actions taken are not part of the employee's job or done in support of a company end.
The case sets some new benchmarks for sexual harassment and retaliation, even by my somewhat inflated standards. Four female employees of Anheuser-Busch alleged sexual harassment and retaliation on the part of one of their coworkers who worked on the brewery line at the Anheuser-Busch plant in Columbus, Ohio. The company had an initial indication of problems in 1993, when it determined that the coworker wrote several harassing and threatening notes to a female employee, who had her car sideswiped in the company parking lot after she made a report to management. Anheuser-Busch fired the male coworker, but he was reinstated as a result of the union filing a grievance on his behalf.
From 1999 forward, the male coworker targeted a series of women with sexual explicitly remarks and physical contact. The women complained to their supervisors and the company investigated the alleged conduct. Several weeks after the initial report of a problem, someone set fire to one of the women's cars at her home. Although the woman alleged that the male coworker was responsible (he had a history of physical threats and intimidation against any number of people at the plant), the company did not investigate and told the woman that she should stop making comments because she could be sued for slander. The investigation determined that the male coworker had engaged in inappropriate conduct, but did not discipline him. Instead, the complainant received a letter informing her that the company had been unable to substantiate her allegations of harassment and that she should contact management if she had any questions.
The company later received an anonymous letter indicating that the brewery botched the investigation by failing to interview people on the line about the male coworker's conduct and noting that almost everyone was afraid of him because of his past actions. The letter went on to identify instances of threats made to employees, people having their tires slashed on their cars, and threats to kill any woman who was responsible for him losing his job. After yet another complaint from female employees, the company investigated and ultimately fired the male coworker. Shorlty after his termination, someone burned down one of the complaining employees’ house. The male coworker was suspected, but before anything else could be done, he shot his girlfriend and killed himself.
Although the district court granted summary judgment against the female plaintiffs, the court of appeals reversed the retaliation claims of one of the women and sexual harassment claims she brought along with another of the female plaintiffs. In doing so, the court recognized that a coworker's acts in retaliation for reporting sexual harassment can be charged to the employer's account, where supervisors or members of management have knowledge of the coworker's retaliatory behavior and either condone it or fail to respond to it so inadequately that the employer can be said to be indifferent or unreasonable under the circumstances.
Most circuit courts of appeal agree with this position, but it bears repeating again. We typically worry about supervisor retaliation in Title VII cases, because the link between the conduct and the interest of the company is apparent. But this decision makes it clear that retaliation performed for a strictly personal reason can also create claims against a company.
There are several messages in this opinion, but the clearest for me is that a company that allows a situation like this one to continue to fester is ultimately going to get tagged with the conduct of the non-managerial harasser. When an employer has clear indications of a problem, and, in essence, throws up its hands once it loses a union grievance, that's simply unacceptable. The court drove that point home.