In Ares v. Aerotek, Inc. et al, 2023 WL 1980484 (W.D.Tex. Feb. 13, 2023), the court, inter alia, denied defendant’s motion for judgment as a matter of law on plaintiff’s co-worker sexual harassment claim following a jury verdict in her favor.
The court held, specifically, that there was sufficient evidence introduced at trial to support the fifth element of a co-worker sexual harassment claim, namely, that her employer (a) knew or should have known of the harassment and (b) failed to take prompt remedial action.
As to the first point, the court explained:
Plaintiff’s hostile work environment claim is “based on constructive knowledge, not actual knowledge.”50 With that in mind, the court finds sufficient evidence supports the jury’s conclusion that Defendant, at a minimum, should have known of Plaintiff’s harassment. First, there was more than “a mere scintilla of evidence”51 showing Plaintiff’s harassment was open and pervasive. Approximately eight men sexually harassed her on a daily basis.52 Her harassers would massage Plaintiff’s back, hug her, bite her, grab her arms, kiss her hands, and sniff her provocatively, despite her protestations, and often in a room that supervisors and managers regularly walked through.53 Indeed, they “thought they could just touch [her] without [ ] consequences.”54 Many other employees saw this conduct.55 One of her harassers tried unsuccessfully to grab her crotch.56 Others would watch pornography on their phones while working next to Plaintiff.57 Some would regularly make Plaintiff do work on her hands and knees, all the while making vulgar, insulting, and sexually-charged comments about her.58 Plaintiff’s harassers regularly tried to engage in graphic, sexual conversations with her.59 They also sexually harassed other women at the company.60
Nevertheless, Defendant contends “the alleged harassment in this case is not the kind of outward, visible conduct that courts find to be even potentially open and obvious for the purposes of constructive knowledge,” contrasting the facts here with circumstances featuring tangible manifestations of harassment, such as graffiti.61 Although tangible manifestations may make constructive knowledge more likely, harassment based purely on conduct can also suffice to put an employer on notice.62 Accordingly, the court cannot say that, as a matter of law, the facts here fail to support a finding of constructive knowledge.
Second, because a reasonably jury could find Plaintiff’s harassment was open and pervasive, it could also find that someone with remedial power should have known about Plaintiff’s harassment. Remedial power is the ability “to take disciplinary action, to provide significant input into employment decisions, to instruct the offending employees to cease the harassing behavior, or to implement other means of taking remedial action.”63 Defendant points out that Plaintiff only reported her harassment to Mr. Estrada, who was merely an “hourly lead.”64 Although the jury found Mr. Estrada was not Plaintiff’s supervisor,65 whether he had sufficient remedial powers is debatable. On the one hand, Mr. Estrada was designated a “technical lead” whose job was simply “to remove barriers as it relates to any technical portion of the job.”66 He did not have authority to make hiring, demotion, promotion, or disciplinary decisions.67 On the other hand, Mr. Estrada was in a position of authority to train and instruct Plaintiff and her harassers, including, it seems, the power to instruct her harassers “to cease the harassing behavior.”68
Regardless, the standard is not whether someone with remedial power in fact knew of Plaintiff’s harassment, but whether such a person should have known about the harassment.69 Here, a reasonable jury could find that, because Plaintiff’s harassment was sufficiently open and pervasive, a person with remedial power—not necessarily Mr. Estrada—should have known of it and, by extension, “the employer should have known of it, had it but opened its corporate eyes.”70
Next, the court held that there was sufficient evidence presented that the defendant failed to take prompt remedial action.
It rejected defendant’s argument that plaintiff’s claim failed because it took remedial action once plaintiff formally reported her harassment, noting that “where a claim is based at least on constructive knowledge, the duty to act promptly arises once a defendant is put on notice, not when a formal complaint is made.”
It also rejected defendant’s argument that plaintiff’s claim failed because she did not properly take advantage of its formal grievance procedure, noting that “applying a reasonableness standard, even when an employer has instituted formal grievance procedures, accords with negligence-based hostile work environment claims” and “the existence and effectiveness of an anti-harassment policy may be relevant in determining whether the employer should have known about the hostile environment, but an employer is not necessarily insulated from liability just because there is a grievance procedure, even if the victim has failed to utilize it.”