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Second Circuit Grants EEOC's Request for Injunctive Relief in Sexual Harassment Case

After a jury found that Defendant KarenKim, Inc. ("KarenKim") had subjected a class of female employees to a sexually hostile work environment under Title VII of the Civil Rights Act of 1964 and New York State Law, the EEOC moved to alter the judgment to impose broad injunctive relief against KarenKim to ensure that the pervasive sexual harassment that had occurred would not continue which included barring the re-hire of the sexual harasser, Allen Manwaring. The district court denied the EEOC's request in its entirety and the EEOC appealed. The Second Circuit found that such injunctive relief was necessary to address the "cognizable danger" of an employer "engag[ing] in 'recurrent violations' of Title VII."

EEOC v. KarenKim, Inc., No. 11-3309-cv (2nd Cir. Oct. 19, 2012): KarenKim is a grocery store whose employees largely consist of teenage female employees. The company is owned and managed by Karen Connors. In 2001, she hired Allen Manwaring as the store manager. In 2006, Connors and Manwaring became romantically involved and had a son together.

At trial, a number of current and former employees testified about Manwaring's sexual harassment of the female employees, which consisted of verbal and physical harassment. Some of his verbal comments included making comments of a sexual nature to employees and compliments about parts of their body. He told one employee that if he was her boyfriend, he would never "let her out of his sheets" and that "if he was 10 years younger, he would be on top of her." He also physically harassed the women by touching and massaging them in inappropriate ways and on a daily basis. He would brush up against them to deliberately touch their breasts, put his crotch against their buttocks, breath on their necks, hug them, and squeeze their hips.

Manwaring's conduct was well known throughout the company and "chattered about on a daily regular basis." Although the company did not have a formal complaint process or an anti-harassment policy, several employees complained to their managers and the owner about Manwaring's sexual harassment. Several employees testified that they had complained to Connors, but were subsequently fired. Connors would ultimately decide that the complaints were unfounded or that the women were lying about the harassment despite one employee calling the police after Manwaring stuck his tongue in her mouth and then plead guilty to second degree harassment. Rather, Connors believed Manwaring's explanation that he had "fallen into" the employee and that it was an accident.

After a two-week trial, the jury found that KarenKim had violated Title VII and the New York State Human Rights Law by subjecting its female employees to a sexually hostile work environment with "malice or reckless indifference." The jury awarded the plaintiffs, which consisted of ten women, a total of $10,080 in compensatory damages and $1,250,000 in punitive damages.

Following the award, the EEOC sought to amend the judgment so as to impose broad injunctive relief against KarenKim especially in light of the fact that Connors and Manwaring remained in a romantic relationship and that Manwaring continued to deny he had engaged in any sexual harassment and remained a constant presence in the store.

The EEOC also presented evidence that KarenKim's attempts at adopting an anti-sexual harassment policy and training protocol were inadequate. The policy required employees to report a "discriminatory act" within 30 days that the company would only accept "formal" complaints in writing. As for the training, it was a short online module that could be completed in a few minutes by rapidly clicking through the screens and printing a completion certificate at the end. As a result, the EEOC requested several injunctive provisions, lasting for ten years, which prohibited KarenKim from, among other things, employing Manwaring or allowing him to enter the grocery store and requiring KarenKim to pay for an independent monitor to continually review its employment practices. The district court denied the relief finding that the ongoing relationship between Connors and Manwaring would not lead to a resurrection of the hostile work environment.

The Second Circuit found that the district court abused its discretion in denying the injunctive relief especially in light of the record which showed that the romantic relationship between Connors and Manwaring "was the primary reason why Manwaring's harassment went unchecked for years" and the fact that he was a store manager with authority over all of the defendant's employees. The Court also noted that the KarenKim's complaint procedure was "suspect in a number of respects" due to its use of technical language and requirement to submit a written complaint within 30 days which was contrary to Title VII and the Supreme Court's holding in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335 (2011) which allows for oral complaints.

Although the Court did not decide the issue of which party has the burden of proving whether the injunctive relief is needed or not, Circuit Judge Katzmann, citing cases from the 5th, 7th, 9th and 11th Circuits, noted "that courts have a 'duty' to use their equitable powers to remedy violations of Title VII to mean that, once a violation of Title VII is proven, injunctive relief is presumptively appropriate and the defendant-employer therefore bears the burden of establishing otherwise."

Please visit the professional bio of Delyanne Barros at the Outten & Golden LLP website.

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