Title VII is what is known as a “make whole” statute. That is, the court is directed to use its power to fashion whatever relief is necessary and required to “make the plaintiff whole,” and/or uphold the purposes of the statute.

In a stunning new decision involving egregious sexual harassment, a federal appeals court in New York held that the trial court abused its discretion in not issuing an injunction to prevent the harasser from being in a position to continue his harassing conduct.

The owner of a small grocery store in upstate New York hired a store manager with whom she quickly became romantically involved. The manager repeatedly verbally and physically sexually harassed many of the young women working in the grocery, some of whom were only 16 years of age.

One woman complained that he would frequently “brush her breast with his arms, come up behind her and put his crotch against her buttocks and whisper in her ear or breathe on her neck, put his hands on her hips and squeeze, rub her shoulders, put his arm around her and hug, or walk by so closely that his hand would brush her buttocks.” Another woman said that he “touched her almost every time he found her alone by massaging her shoulders, touching the back of her hair, and rubbing her thigh.”

The grocery had no anti-harassment policy and no formal complaint procedure, but several women complained to their supervisors about the manager’s conduct. The result of their complaints were termination of some of the women, no follow-up on the part of the management, and the owner crying and deciding that the complaints had no merit.

A jury awarded the ten women plaintiffs $1.2 million in punitive damages, and the EEOC asked the court for an injunction because the grocery “has not adopted adequate measures to ensure that harassment of the kind at issue in this action does not recur.” The EEOC noted to the court that the owner and the manager were still in a romantic relationship, that after the trial, the manager continued to publicly deny that he had engaged in any sexual harassment, that he continued to be a presence at the store since he became a produce contractor for the store, and that there was no proscription to his being rehired.

The trial court denied the EEOC’s request for an injunction, stating that the requested relief was overly burdensome since it would last ten years and “requires the [store] to alter drastically its employment practices and hire an independent monitor whom, together with the EEOC, will review and critique any present or future employment practices with respect to sexual harassment.”

On appeal, the Court held that under Title VII, “[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate. ... Once a violation of Title VII has been established, the district court has broad, albeit not unlimited, power to fashion the relief it believes appropriate.”

The appeals court stated that “this is not an ordinary case,” and found that the trial district court “abused its discretion” by not ensuring by way of an injunction that the manager “is no longer in a position to sexually harass [store] employees.” The Court stated that “we conclude that, at minimum, the district court exceeded the scope of its discretion in declining to order (a) that [the grocery] is prohibited from directly employing [the manager] in the future, and (b) that [the grocery] is prohibited from permitting [the manager] to enter its premises.”

Although “this is not an ordinary case” in that the harassment was so egregious and widespread, the harasser was involved with the owner, the harasser and owner denied the claims, employees were fired for complaining, and the harasser was still frequenting the store, this case stands for the proposition that under Title VII a court has broad powers to fashion an appropriate remedy, and that in the appropriate case not exercising its broad power may be an abuse of discretion.

(Note:  unfortunately, what makes this a typical case is that the store had no anti-harassment policies and no formal complaint procedure).