- A jury must decide if the harassment a former plant worker endured was “egregious enough” that he was constructively discharged in violation of the Age Discrimination in Employment Act, the 7th U.S. Circuit Court of Appeals held (Stamey v. Forest River, Inc., No. 21-1539 (June 17, 2022)).
- The worker installed wiring in cargo trailers at Forest River, Inc.’s plant in Elkhart, Indiana, according to court documents. He claimed that in the fall of 2017, when he was 61, co-workers began relentlessly taunting him with ageist insults, calling him “grandma” and “old b----,” and saying things like, “You still alive? What the F?” and “What’s up homo? Looks like your dentures are about to fall out.” He said co-workers also repeatedly defaced his workspace, zip-tying his tools together, sealing his toolbox shut, shoving screws in his work cart and writing profanity on his tool cabinet, in the bathroom and around the plant. When the worker’s fiance called HR, she was told he should contact a specific HR employee. He said he left a voicemail for the HR employee and never got a response. He also said he complained to his supervisor and the supervisor’s replacement, but the harassment continued.
- In early 2018, the worker left another voicemail for the HR employee. This time, the HR worker called the plant manager, who allegedly chastised the worker for going “over his head” and told the co-workers to stop the “horseplay,” court documents said. The worker filed a complaint with the U.S. Equal Employment Opportunity Commission, but the verbal insults allegedly continued. He resigned in August 2018 and sued under the ADEA. A federal district court granted summary judgment to the employer. In a 2-1 ruling, the 7th Circuit revived the lawsuit. Forest River did not return a request for a statement prior to press time.
The worker’s allegations call attention to some critical HR issues. For example, when an employee complains about harassment, HR should take immediate and appropriate action to correct the matter, the EEOC repeatedly states in its guidance. This includes seriously considering an investigation, attorneys told HR professionals during a past Society for Human Resource Management conference, HR Dive reported. And an investigation should be seriously considered if the issue is one that might make its way to court, the attorneys explained.
When HR gets a complaint that requires an investigation, it should create a witness list, set a timetable and conduct interviews, one of the attorneys suggested. Even if an employer’s ultimate determination is wrong, it won’t be legally liable if it acted in good faith, he added.
In addition, before completing the investigation, HR should make sure the harassment doesn’t continue, an EEOC FAQ states.
Harassment or cyberbullying in a remote work environment is also a concern, an attorney previously told HR Dive. HR should take complaints of remote misconduct just as seriously as if the complaints originated at the office or worksite, the attorney said. Investigations can get tricky, but the framework is the same — promptly look into allegations and always start an investigation with a clear understanding of the alleged misconduct, she explained.
Here, the worker alleged that the HR employee never returned his messages, the 7th Circuit pointed out. His second supervisor allegedly shrugged off his requests for help, telling him it was because he couldn’t name the offenders with certainty, even though he named some of the most persistent perpetrators. The plant manager allegedly chastised him for reporting the harassment to HR, never made him aware of any steps being taken to stop it and trivialized the daily harassment and vulgar graffiti as mere “horseplay,” the 7th Circuit added. Also, according to the allegations, the plant manager never threatened consequences if the behavior recurred or monitored the situation to make sure that didn’t happen.
If a jury credited these allegations, it could conclude that the employer’s minimal response to the worker’s complaints was unlikely to change the environment and any future complaints would fall on “deaf ears,” the 7th Circuit said.
“While this case is close, what tips it to trial is the requirement at summary judgment that we view the facts and draw all reasonable inferences in Stamey’s favor ... Our role is not to weigh the evidence or resolve factual disputes — it is up to the jury to decide,” the court explained.