THIS ARTICLE FIRST APPEARED IN HRLAWS.COM’S TENNESSEE EMPLOYMENT LAW LETTER BY BUTLER SNOW’S David L. Johnson.
Like Title VII of the Civil Rights Act of 1964, the Tennessee Human Rights Act (THRA) forbids sexual harassment as a form of sex discrimination. To be actionable, the harassment must be so severe or pervasive that it creates a hostile work environment that alters the conditions of employment. Government officials who commit sexual harassment may also be liable under federal law for depriving employees of their constitutional rights protected by the Fourteenth Amendment’s Equal Protection Clause.
Recently, a government worker in Anderson County filed suit against the county, alleging she was subjected to severe and pervasive sexual harassment at work. Several of her female coworkers backed up her claims against the circuit court clerk, an elected official.
In 2014, William Jones was elected circuit court clerk for Anderson County, which is in East Tennessee. Soon after he took office, two female employees complained that Jones made sexually inappropriate comments that made them uncomfortable. Anderson County’s HR director, Russell Bearden, investigated one of the complaints.
According to Bearden, when he counseled Jones about his conduct, Jones laughed, told him that he didn’t report to anyone, and stated: “I could sit in my office butt naked with the door open and [sexually explicit remark omitted,] and there’s nothing you can do about it.” The county tried to enroll Jones in an antiharassment training course, but he participated in his own online program and didn’t cooperate further.
Gail Harness, a college student, began working in the clerk’s office part-time in February 2016. Harness claims that throughout her tenure, Jones required female employees to refer to him as “Daddy” and called certain female employees “Daddy’s b_tch.” She claims that Jones continually said inappropriate things to her, making suggestive comments about her appearance, encouraging her to wear provocative clothing, and complimenting her breasts. She also claims that he often touched her, coming up behind her and placing his hands on her hips, rubbing her back, and resting his head on her shoulder while staring down her shirt.
In spring 2016, Harness told Jones that she was interested in a full-time position that had become available. Jones allegedly began sending her sexually explicit Snapchat messages. Harness claims she told him to stop, but she admits sending a picture of her breasts in response to his request. In June, Jones’ wife confronted Harness after discovering the Snapchat messages. According to Harness, Jones was angry, accused her of telling his wife, told her she could “forget about the full-time position,” and promised that she would “pay” for telling his wife.
The following month, Harness’ husband called Anderson County Mayor Terry Frank and told her that Jones was discriminating against his wife. A short time later, Jones hired Harness for the full-time position. However, Harness claims he later told her that her husband’s call had almost gotten her fired.
In February 2017, Jones issued Harness a warning for insubordination for arguing with him, and in March, he issued her a warning because she failed to write a receipt for a customer and because her cash drawer was over by $6. Harness claims there was no merit to either warning. In the meantime, she says, Jones continued his sexually inappropriate behavior.
In summer 2017, Jones began threatening to transfer Harness to the Oak Ridge office, known as the “clerk’s graveyard.” In August, Harness met with Bearden for the first time and complained about Jones’ conduct. A week after she voiced her complaints, Jones transferred her to the Oak Ridge office. Harness claims that when he visited the office, he would ask her if she was looking for a new job and brag about his relationship with the Anderson County law director.
After Harness provided a sworn statement to HR in September 2017, Bearden told her to stay home, and the county placed her on paid Family and Medical Leave Act (FMLA) leave, which continued until March 18, 2018. She was then placed in a new position at the Anderson County Senior Center. In the meantime, complaints by Harness and others prompted the Anderson County Board of Commissioners to adopt a resolution censuring Jones in February 2018.
A week before her placement at the senior center, Harness filed suit in federal court, alleging that she was subjected to unlawful sexual harassment in violation of the THRA and the Equal Protection Clause and claiming that Anderson County unlawfully retaliated against her by transferring her to Oak Ridge and then placing her on leave after she complained about Jones’ conduct. Anderson County moved for summary judgment, asking the court to dismiss her claims without a trial for lack of evidence.
In a decision issued on October 17, 2019, the federal district court had little trouble denying Anderson County’s motion. The court noted the county’s “own summary of [Harness’] employment experience with Jones . . . acknowledges [her] allegations of harassment, intimidation, improper suggestions, vulgar language, and inappropriate physical contact with her.” Under the THRA, unlawful harassment must affect a “term, condition, or privilege” of a worker’s employment. Construing the evidence in the light most favorable to Harness—which must be done at the summary judgment stage—the court found she presented sufficient evidence to demonstrate that.
Under the THRA (and Title VII), an employer has a defense if the alleged harasser wasn’t the complaining employee’s supervisor, the employer had an appropriate EEO policy in place, and the employee either didn’t avail herself of the policy or the employer took prompt and appropriate corrective action in response to her complaint. Anderson County argued that Jones, as an elected official, was merely Harness’ coworker and couldn’t be deemed her supervisor, and she couldn’t demonstrate that it “knew, or should have known, of the harassment and failed to respond with prompt and appropriate corrective action.”
The court didn’t buy that argument. Regardless of whether Jones was considered her supervisor, Harness offered proof that Anderson County never notified her of its antiharassment policy or its procedure for reporting complaints. Further, the county waited for more than a month after she complained before it removed her from Jones’ supervision.
The court also rejected Anderson County’s claim that Harness had presented insufficient evidence of retaliation. The county argued that placing her on leave wasn’t retaliation because her pay and benefits remained the same, but the court refused to consider that argument, noting the county didn’t cite any legal support to back it up. Because the court denied Anderson County’s motion for summary judgment, Harness will have the opportunity to present her claims to a jury unless the parties reach a settlement. Harness v. Anderson County, Tenn., 2019 WL 5269096 (E.D. Tenn., Oct. 17, 2019).
This whole situation appears to be a real disaster for Anderson County. After Harness filed suit, several other women complained about Jones’ conduct. Jones responded that he was the victim of a political attack. In 2018, he was voted out of office. However, the county must continue to deal with the mess he left behind.
Employers can learn important lessons from this case. For instance, it doesn’t matter how good your EEO/antiharassment policy is or how well you implement it if you neglect to ensure that a copy of the policy (including your complaint-reporting procedure) is distributed to all employees. You should have a reliable system in place, corroborated by employee signatures, so you can demonstrate that all pertinent employment policies have been disseminated to your entire workforce. Unlike Anderson County, you should also act swiftly to remove a victimized employee from the supervision of someone deemed a perpetrator.
This case also illustrates the difficulty of managing a situation in which the alleged perpetrator sits at the top of the food chain. It’s incredible that Harness was able to elicit testimony from the county’s HR director that Jones boasted he could do whatever he wanted with impunity. If a boss acts like that, it’s a recipe for disaster.
That said, the outcome of a jury trial in this case isn’t a foregone conclusion. It’s noteworthy that Harness sent Jones a revealing picture of herself in response to his request, and it’s unclear from the court’s opinion what her explanation was. The county may argue that Jones’ conduct wasn’t unwelcome and that he and Harness had a consensual—albeit inappropriate—relationship. Sounds like a perfect #MeToo debate for a jury to resolve.