Jottings By An Employer's Lawyer

Saturday, April 17, 2004

Award Based on 9 Years of Religious Harassment Upheld by 1st Circuit

Although the jury that found religious harassment awarded $400,000 in compensatory damages and $750,000 in punitive damages, those figures were reduced to the $300,000 maximum under Title VII. Since the $400,000 compensatory damage figure alone exceeded the cap, the court did not have to consider the employer's challenge that the punitive damage award was improper. The plaintiff, a former Assemblies of God minister who remained active in his church even after beginning to work as a janitor, alleged that he was harassed over a period of nine years by his supervisor, who repeatedly commented about his state of chasteness. The employer sought to defend on the difference raised in an earlier First Circuit case, Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 189 (1st Cir. 2003) of a "conceptual gap between an environment that is offensive to a person of strong religious sensibilities and an environment that is offensive because of hostility to the religion guiding those sensibilities." Notwithstanding a conceptual possibility, the court did not find it in this case, upholding the jury's award. Johnson v. Spencer Press of Maine, Inc. (1st Cir. 4/16/04).

The Court also held that even though the plaintiff had been terminated for misconduct at a subsequent job, there is not a per se bar against any damages for lost wages after discharge for misconduct at another position. In this case, since the plaintiff had been totally unable to work after that termination and could not show that it was the fault of the employer, it was proper in this case to end his back pay claims at that point.

From just the facts recited in the court's opinionn, it was clear that the supervisor engaged in what was extremely vulgar conduct. Notwithstanding the "conceptual gap" that the employer tried to exploit, this case stands as a good reminder of what I heard a very successful plaintiff's employment lawyer say about employers and their counsel --- they consistently underestimate the power of bad facts. Amen.

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