When is an injunction required in a sexual harassment case?

The Court of Appeals provides some guidance on when district courts should grant injunctive relief against an employer where the jury has returned a sexual harassment verdict on behalf of plaintiffs who were victimized by a sole harasser.

The case is EEOC v. KarenKim, Inc., decided on October 19. A class of female supermarket employees in Oswego, N.Y., endured a hostile work environment by the Store Manager by the name of Manwaring, who hounded his teenage employees with verbal and physical abuse. I will spare you the details, but take my word for it that Manwaring has no business working with or around women, and we'll leave it at that. Anyway, the women complained about this, but store management either did not believe the complaints or did not follow-up as required under Title VII. Eventually, though, Manwaring was fired over the harassment, but even then, a female manager, Conners (who is in a romantic relationship with Manwaring) tried to get employees to lie for him in the litigation. And Manwaring continued to enter the store even after he was fired. Finding that the store was liable for the hostile work environment and did not take reasonable steps to stop and prevent the harassment, the jury awarded the 10 plaintiffs a total of $10,080 in compensatory damages and $1.25 million in punitives.

The appeal concerns the EEOC's request for broad post-verdict injunctive relief against the store even though Manwaring was fired. Among other things, the agency wanted a 10-year order against further sexual harassment and a prohibition against employing or compensating Manwaring or even allowing him to enter the building. The EEOC also wanted the store to give employees photographs of Manwaring and notify them that he could not enter the store. The district court said this request was overbroad and that, after all the store had been through in this case, it would probably do its best to prevent sexual harassment in the future.

The Second Circuit (Katzmann, Wesley and Lynch) reverses and remands. While the district court has broad authority to grant or deny injunctive relief, that discretion is not unlimited. The Court provides the backdrop for its ruling:

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 an ordinary case. 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. Moreover, he was and remains in a longstanding romantic relationship with Connors, the owner and highest officer of the defendant-employer. Moreover, the record makes evident that this 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. Absent an injunction, nothing prevents Connors from once again hiring Manwaring as an employee. In addition, even if Manwaring is not re-employed at KarenKim, Manwaring’s status as Connors’s fiancé, as well as his relationships with other current KarenKim employees, renders it likely that he will remain a presence at the store. Finally, Connors’s past refusal to adequately respond to multiple credible complaints about Manwaring’s conduct suggests that, so long as Manwaring remains in a romantic relationship with KarenKim’s owner and highest officer, KarenKim will not take adequate remedial measures in response to any future harassment on the part of Manwaring.

So this is a special case, as Manwaring was fired but the risk remains that a hostile work environment will return to the store. That will probably happen once Manwaring crosses the threshold to visit his girlfriend, one of the managers. The district court did have discretion to reject as overbroad some of the EEOC's proposed injunctive relief, i.e., "requiring KarenKim to distribute wallet-sized photographs of Manwaring to its employees, or to hire and pay for an independent monitor to continually review KarenKim’s employment practices and investigate possible instances of sexual harassment." But the district court abused its discretion in "in declining to order (a) that KarenKim is prohibited from directly employing Manwaring in the future, and (b) that KarenKim is prohibited from permitting Manwaring to enter its premises."

In a footnote, the Court of Appeals provides further guidance as to the adequacy of defendant's sexual harassment procedures. This footnote is directed toward the district court in taking up the request for injunctive relief anew. The Second Circuit doesn't like the store's policy directing employees to submit their complaints to Connors, "who has ignored complaints and retaliated against complainants in the past." Also, the store's policy contains technical language that will confuse the teenage employee population by making reference to “discriminatory acts.” And, the policy's requirement that sexual harassment victims must file written complaints within 30 days is too narrow in light of Title VII's 300-day statutory window in order to preserve rights to bring an EEOC charge, and labor law in general does not require complaints in writing.

Although the Second Circuit declines to resolve this issue, in concurrence, Judge Katzmann says that once the jury finds the employer is guilty of sexual harassment, injunctive relief is presumptively appropriate and the employer bears the burden of establishing otherwise.