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Legal Updates from KLO

“Sex pest” costs employer $116,026.34. Judge affirms finding of emotional damage and awards fees/costs against employer

Posted on March 29, 2021

By: Lily Crespo Esq.

Quick takeaway: Employers should consult with legal counsel to develop and implement policies for the identification, investigation and resolution of complaints of discrimination. These kinds of policies should include training for board members, managers, and supervisors to prevent and timely remedy sexual discrimination on the job.

What happened: A Montana federal trial court said it was appropriate for a hearing officer to award $50,000 to an employee who proved emotional distress caused by a hostile work environment. The federal trial court also ruled against the employer in the amount of $61,725 fees and $4,301.34 costs.

How did it get to that point?

An outstanding employee who makes her employer a lot of money…

Amy Lowery began working for Sarens USA, Inc. (Sarens) in 2014 as a Marketing Coordinator.  Lowery is female and identifies as a gay female. Sarens is the world’s second largest crane company and maintains an office in Missoula, MT. Lowery provided outstanding service to the company and got Sarens several multi-million dollar projects.  Lowery was the impetus for Sarens to attend the RICA and POWER-GENconferences, two conferences at which Sarens had never before had a presence. Sarens generated approximately $3 to $5 million in revenue as a result of attending those conferences.

A manager/supervisor who abuses his position to harass other employees…

In July 2016, Mark Watson became Sarens’ Country Manager, based in Sarens’ office in Houston, Texas.  Watson was responsible for overseeing Sarens’ day to day operations in the United States, including the human resources department, operations and equipment.  Watson had successive supervisory authority over Lowery and controlled much of her performance as a Sarens employee.

Some examples of the behavior that earned Watson his nickname “sex pest”

  • In January 2017, a retirement party was held for two Sarens employees from the Missoula office who were retiring after 30 years with the company. Watson traveled to Missoula for the party.  Watson commented on a female employee’s posterior and said, “her ass was big and that wasn’t his type and was it mine.” Watson then commented that his former company had taken out a higher insurance policy against him because of sexual harassment. Lowery interpreted Watson’s comment regarding the higher insurance policy as a means of telling her that he was free to say and to do what he wanted.
  • In July 2017, Lowery was out of work on a medical leave after having had a major surgery. Watson called her at home and commented that “he’s usually just trying to get me and girls into bed and not out of bed.”  Lowery was disgusted and upset by Watson’s comment.
  • Watson made frequent comments regarding Lowery’s physical appearance, including her breasts and her posterior. At a conference in October 2017, Watson mentioned something to Lowery about buttoning her shirt up a little higher and said, “You know, unless that’s what you’re going for, because that’s right where my eyes are going.”
  • Watson implied the desire to engage in a threesome with Lowery.
  • At one point during the conference, Watson commented in front of Lowery and several of her co-workers that his “. . . type was . . . [a]nything with a pulse” and acted like he was kicking a corpse on the floor.
  • There were multiple other examples of Watson’s behavior to which there were often a number of witnesses.

The hearing officer finds for the employee

While the hearing officer did not find that Lowery was terminated from employment because of her sex or in retaliation for protected activity, the hearing officer did find that Lowery suffered emotional distress damages and was due compensation as a result. (In the amount of $50,000).

“the substantial and credible evidence of record establishes Lowery was subjected to unwelcome sexually harassing behavior by Watson that was sufficiently severe or pervasive as to affect Lowery’s working conditions. Further, the substantial and credible evidence of record establishes Watson’s conduct toward Lowery was because of her sex. The unwelcome comments included Watson questioning if Lowery was getting laid whenever he spoke with her; suggesting a female server was suitable for a threesome; commenting not only on Lowery’s physical appearance but that of other women in Lowery’s presence; and questioning whether Lowery “would do her” while pointing at women during what should have been a professional achievement for Lowery.”

Lowery then pursued fees and costs and won them from a Montana federal district court. ($61,725 fees and $4,301.34 costs.)

What employers can learn from this case: This entire situation was easily dealt with. Multiple employees and supervisors were on notice of Watson’s behavior and no one stopped him in his tracks. The substantial and credible evidence of record showed the employer in this case failed to exercise reasonable care to correct and to prevent Watson’s harassing behavior despite having actual and constructive notice of Watson’s discriminatory conduct. Having a policy/procedure in place is a good first step, but if the sexually predatory behavior of the employee is left unchecked, the employer will suffer serious legal and financial challenges.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

Kaleva Law

At Kaleva Law Office you receive the experienced, practical advice of a large firm with the responsive, efficient, top-notch support of a small firm. We take care of the legal questions so you can focus on education.

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