See No Evil, Hear No Evil
Weger v. City of Ladue -
Apparently, seeing is not believing, at least according to two ultra-conservative Eighth Circuit judges. Despite jarring testimony establishing that sexual harassment by a police captain was “common knowledge” in a Missouri city’s police department, they dismissed sexual harassment claims brought against the city of Ladue by Julie Weger and Mary Meghan Murphy.
In 1999, Weger and Murphy were hired as communications officers by the city’s police department. By the fall of 2001, the two were forced to endure daily sexual harassment by their supervisor, Captain William Baldwin. Despite the fact that the women made it clear that such behavior was unwelcome and inappropriate, Captain Baldwin would chase, tickle, grab, and rub female officers. He often went under their desks so that he could rub their legs. He made sexual comments about their appearances to both the women and to other officers and repeatedly inquired about their sexual relationships.
Captain Baldwin’s actions clearly violated the police department’s anti-harassment policy, which forbids sexual harassment and outlines a complaint procedure for employees who believe they are being harassed or those who witness harassment of other employees. The policy specifically requires employees to report observed acts of harassment to a supervisor and declares that failure to report such acts is grounds for discipline. Weger and Murphy’s co-workers later testified that Captain Baldwin’s actions were well-known around the office; several even admitted that his nicknames included “Tickle Me Elmo” and “Captain Tickles” because of his propensity to tickle and touch female employees. None of these co-workers ever reported Baldwin. After more than a year of dealing with Captain Baldwin’s harassment, Ms. Murphy “had had it.” She formally reported Baldwin, who was then her supervisor, to police Lieutenant Chris Baker. Captain Baldwin’s harassment of the plaintiffs soon ceased.
The law is clear that an employer must pay damages for sexual harassment perpetrated by a supervisor (in this case, Captain Baldwin) if it knew or should have known about the harassment. According to Judge Shepherd – a Bush II appointee who authored the majority opinion in this 2-1 decision – even though several employees testified that they saw Captain Baldwin harass female employees and that his behavior was “common knowledge” in the office, it was impossible to conclude that the city had “notice” of the captain’s behavior prior to the date Ms. Murphy officially reported him. Judge Shepherd dismissed the fact that Captain Baldwin’s behavior was witnessed by several supervisors, who had the authority to address the problem and who testified that they were aware that the sexual harassment policy required them to report any observed harassment. In other words, seeing was not believing.
A dissent written by Judge Bye, a Clinton appointee, questioned the majority’s conclusion that seeing harassment was not the same as knowing that harassment was occurring. Judge Bye stated that he was unable to uncover any case to support the conclusion that the supervisors’ first-hand observations of Baldwin’s conduct were insufficient to prove actual notice of the harassment. He concluded that since several employees testified that Baldwin’s behavior was common knowledge, occurred frequently, and continued over a number of years, a reasonable employer should have known about the behavior before Murphy reported Baldwin, and should have taken action to halt such behavior more promptly.
Unfortunately, Judge Bye’s more reasoned interpretation of both relevant precedent and of the realities of a hostile work environment did not convince a majority of the three-judge panel, which instead pursued an activist course by curtailing worker’s rights. Although Murphy and Weger have sought review by all eleven judges of the Eighth Circuit, they will probably not fare any better on appeal. Despite constant complaints that his nominees have been unfairly denied appointments, seven of these judges – nearly two-thirds – were appointed by President George W. Bush as part of his plan to pack the courts with ultraconservative judges. Considering that President Bush’s appointees now constitute a solid majority of this court, his judges, who will serve on the bench long after he leaves office, are free to continue their crusade to limit the corrective power of antidiscrimination laws. That’s quite a legacy.
