In Dalton, Tamika v. Sweet Honey Tea, Inc. and Darrell DeShazer, No. 23 CV 01793, 2023 WL 8281524 (N.D.Ill. Nov. 30, 2023), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964 and local (state) law.
From the decision:
The Court … finds that Dalton has adequately pled severe or pervasive harassment altering the conditions of her employment. When presented with a Rule 12(b)(6) motion, the question is simply whether Dalton’s allegations establish that her treatment “could plausibly be abusive.” See Huri v. Off. of the Chief Judge of the Cir. Ct. of Cook Cnty., 804 F.3d 826, 834 (7th Cir. 2015) (“[I]t is premature at the pleadings stage to conclude just how abusive [plaintiff’s] work environment was…. It may be that [plaintiff] … cannot produce evidence to survive summary judgment. But that question can safely be postponed to another day.”). At this stage, Dalton’s allegations more than plausibly suggest harassment that is sufficiently severe and pervasive to give rise to a claim for a hostile work environment. Dalton alleges that she was subjected to unwanted sexual advances, including sexually suggestive comments about her body and requests to go out, and that the conduct made her feel unsafe to the point that she was constructively discharged. The Court finds Dalton’s allegations plausibly suggest harassment that is objectively and subjectively offensive, and are sufficient to survive dismissal.
With respect to the fourth element—employer liability—Defendants argue that the alleged harasser Eric was “a known drifting homeless man who goes from merchant to merchant” in the mall where Sweet Honey Tea is located, and that at no time was he ever an employee or independent contractor of Sweet Honey Tea. (Dkt. 25 at 23–24) (citing Dkt. 25-1, DeShazer Aff. ¶ 24.) Defendants further claim that Dalton’s singular allegation that Eric “help[ed] out in exchange for food” is insufficient to establish that he was an employee of Defendants, and therefore there is no basis to impute liability to Defendants. (Dkt. 25 at 24.)
Defendants’ arguments fail for several reasons. First, as discussed above in Section I, Defendants may not rely on facts outside the pleadings contained in the DeShazer affidavit in order to contradict the allegations in the FAC. DeShazer’s statements in his affidavit about Eric’s status as an employee are therefore improper and cannot support dismissal. Instead, the Court is limited to the allegations in the FAC, in which Dalton claims that Eric was an employee who assisted at the store. Second, even if the allegation that Eric assisted “in exchange for food” is not sufficient to make him an employee of Defendants, that would not protect them from employer liability. Contrary to Defendants’ suggestion in their briefing, an employer’s liability for harassment is not limited to supervisors and coworkers—employers may also be liable for the discriminatory acts of other individuals such as independent contractors or customers. See Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 904 (7th Cir. 2018) (“[Employers] are liable for the discriminatory acts of others—coworkers, independent contractors, customers, inmates etc.—only if they are negligent either in discovering or remedying the harassment.”). It is ultimately irrelevant whether the alleged harasser Eric is a formal employee or just an individual who frequents Sweet Honey Tea and helps in exchange for food. Defendants may be liable for Eric’s harassment if they were negligent in remedying it, and Dalton’s allegations that she informed DeShazer about the harassment, but that he did nothing to address it, more than satisfy that threshold.
The court, accordingly, held that plaintiff sufficiently pled claims for sexual harassment.