The Seventh Circuit Court of Appeals (which oversees Indiana, Illinois, and Wisconsin) recently addressed the issue of harassment by male prisoners in a lawsuit brought by female employees of an Illinois correctional facility. This case presented a novel issue related to ambient harassment (i.e., indirect or secondhand harassment). The Seventh Circuit ultimately determined that the group of correctional facility employees who alleged gender discrimination based, in part, on a theory of “ambient” harassment, were not similarly situated enough to be certified as a class.
Background
The Cook County Jail in Chicago, Illinois, houses an average of 6,500 inmates on any given day and sees an average of 100,000 inmates in the period of a year. Ten female employees of the jail brought a harassment lawsuit against the County and the Sheriff’s Office alleging sexual harassment by male inmates. The crux of their claim was that women working in the facility were constantly subject to sexual harassment by inmates. They supported their claim with more than 1,700 filed reports of sexual harassment by male inmates, affidavits and the jail’s own policies. The ten women sought certification to be able to bring the lawsuit as a class of approximately 2,000 non-supervisory women who worked in the jail or the adjacent courthouse.
District Court Case
In order to be certified as a class the group who is bringing the lawsuit must prove certain elements, including commonality (the questions of law and fact of their claims are sufficiently common to one another), typicality (the claims of the ten named employees are representative of the others in the class), and predominance of their claims (the questions of law or fact common to all class members predominate over any individual claims).
Obviously, women working in different capacities within the facility have different experiences. Some women work directly with prisoners. Others, such as accountants or programmers, may have no contact with prisoners. Some, like medical staff, have only minimal or occasional contact. In order to tie these experiences together to unify the proposed class, the employees relied upon an expert who propounded the theory of “ambient harassment.” That theory was described as “the experience of working in an environment highly permeated with sexually offensive and degrading behavior, that is, a highly sexualized atmosphere in which crude and offensive sexual behavior is common and employees see it is normative, whether specifically directed at them or not.” Put another way, it was intended to extend the evidence of hostile environment to those who did not directly experience it.
The district court determined that the “ambient harassment” theory provided the necessary “commonality” in order to certify the class, and so the court certified the class, which means they were allowed to proceed with their lawsuit on behalf of themselves and all others similarly situated. The class was defined as encompassing all non-supervisory female employees working at the facility. The County appealed the certification. While the appeal was pending, the district court conducted a further review of the issue and narrowed the class to exclude those employees with no prisoner contact. The court also abandoned the ambient harassment aspect of the case by rejecting the report of the expert that had put forward the “ambient harassment” theory.
Appellate Court Case
On its second appeal, the Seventh Circuit largely sidestepped the issue of whether ambient harassment could be a viable theory, particularly in the penal context, but agreed that given the rejection of the expert report, ambient harassment was no longer an issue in the case, and therefore no commonality existed, which is necessary to have a class action. On that basis, the appellate court decertified the case.
Specifically, the appellate court held that the lower court’s treatment of ambient harassment as “one homogenous phenomenon” overlooked meaningful distinctions among class members’ individual experiences. For example, when assessing the reasonableness of the defendants’ harassment policies, what could be reasonable for one class member (e.g., a law librarian) could be unreasonable for another (e.g., an employee working directly in an inmate division). Additionally, the ten named employees, who experienced direct harassment, would have no incentive to place evidence of ambient harassment at the forefront of litigation, making them poor proxies for class members whose claims rise or fall on the ambient harassment theory.
Takeaway
While the court ultimately did not rule upon the “ambient harassment” theory, it is something that employers need to keep an eye out for as this theory could increase the potency and size of harassment class action lawsuits. Another thing for employers to keep in mind is that the “ambient harassment theory” is similar to the “hostile environment” theory of sexual harassment. Courts and agencies have long accepted the “hostile environment” theory of sexual harassment in the workplace, which encompasses situations in which harassment is “sufficiently severe or pervasive to create an objectively hostile work environment.” While harassment issues are necessarily fact-specific, which bodes more positively toward fighting class action litigation, employers should have consistent and effective policies concerning sexual harassment to help prevent lawsuits in the first place.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at [email protected]. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.