Not Good News

Things just got harder for us.

It used to be that employment discrimination was easy to prove and the employers was responsible for their employees and had to make their workplace free from discrimination. All that may have changed.

Employer Was Not Liable for Harassment of Transgender Woman
SHRM
By Jeffrey Rhodes
September 21, 2021


A transgender woman could not establish employer liability for a co-worker's threatening statements and conduct that the employer investigated but could not immediately stop, or for retaliation, the 6th U.S. Circuit Court of Appeals ruled.

The plaintiff lived and presented as a man when starting to work for the city of Detroit in January 2016. About five months after starting the job, the plaintiff decided to undergo surgery to transition to a woman and asked for time off. The city supported the transition and the need for time off.

Did you get that first sentence?

I always thought that an employer was responsible for the conduct of their employees.
The plaintiff returned to work after the first of a series of medical procedures. The plaintiff's supervisor revealed that someone filed a complaint alleging that the plaintiff had violated the dress code [Because she came to work in her true gender.], but the supervisor stated that the plaintiff's attire was appropriate. In July, the supervisor again told the plaintiff that another dress-code complaint was filed.
[…]
Two days later, someone delivered to the plaintiff's desk a gift bag that contained a phallic sex toy and a handwritten note quoting a Bible verse against cross-dressing. The note also said, "We don't wont (sic) people like you working here." The plaintiff reported the gift bag and note and asked the city to install a lock on the office door and a camera to help identify the harasser.
[…]
On May 8, 2017, the plaintiff received a typed note quoting a Bible verse commanding execution of homosexuals and reported it as a death threat. The plaintiff learned that a nearby co-worker in accounting made the earlier dress-code complaints. The plaintiff suspected that the co-worker might be the harasser but did not tell HR or the city.

Meanwhile the city tried to find out who was harassing the employee they had the handwriting analyzed, they disciplined one employee, but the harassment continued.

The plaintiff filed a federal lawsuit against the city, claiming sexual harassment and retaliation. The city moved for summary judgment, which the district court granted.

On appeal, the 6th Circuit determined that the city had fulfilled its duty to investigate the acts of harassment, even though it did not find the perpetrator. It further found that the plaintiff could not establish retaliation by the city because the decision not to promote her occurred months after the complaints were made and the plaintiff presented no other evidence of causation.

My reading of the case is that companies are no longer be libel for employee behaviors if they make an effort to find the tormentor which is very disturbing.