Court Order Needed to Keep Rogue Grocer Away

MANHATTAN (CN) - A grocery store should have take tougher actions after a manager who was dating the boss sexually harassed 10 women, the 2nd Circuit ruled.

Allen Manwaring, now in his mid-40s, got a job as store manager of the Oswego, N.Y.-based shop KarenKim, doing business as Paul's Big M, in January 2001. He started a relationship with its owner, Karen Connors, months later.

The couple has been engaged for the past five years, and recently became parents.

In 2011, the store was hit with a sordid sexual harassment, which ended with a $1.25 million verdict against it, later reduced to $50,000.

Several victims of sexual harassment, two of whom were 16, testified that Manwaring propositioned, groped and rubbed up against them.

The 2nd Circuit recounted their testimony Friday.

One teenager told the court that Manwaring would "deliberately 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," according to the court.

Another testified that Manwaring "touched her almost every time he found her alone by massaging her shoulders, touching the back of her hair, and rubbing her thigh."

When several women took their complaints directly to Connors, the owner, she cried and "initially appeared to believe" the allegations, the women said. But Connors nevertheless later decided that the complaints were unfounded.

Connors testified at trial that she could only recall two incidents, and she claimed to have handled the claims appropriately.

The court found that supervisors fired, ignored or retaliated against several women who complained.

Manwaring had criminal charges pressed against him after he forced his tongue into the mouth of a high school student, who cried "hysterically" before her friend's mother called the police, according to the opinion.

He pleaded guilty to second degree harassment, but testified that "in [his] heart [he] always felt it was an accidental joking incident."

The Equal Employment Opportunity Commission, or EEOC, convinced a federal jury to make the store pay for maintaining a "sexually hostile work environment" with "malice or reckless indifference."

"[F]ollowing the jury verdict, Manwaring continued to publicly deny he had engaged in any sexual harassment; and that Manwaring continued to be a presence at the store in his new capacity as a produce contractor for KarenKim," the opinion states.

The EEOC demanded an injunction beefing up the shop's anti-harassment training, posting Manwaring's picture with a notice that he cannot enter the building for 10 years, and forcing the store to pay for an independent monitor to guide its reforms.

The store did not object to keeping Manwaring off its premises and pay wall, it opposed the other measures as unnecessary.

U.S. District Judge Norman Mordue ruled that the existing anti-harassment policies and legal woes would be enough to make the store take the issue seriously.

But an appellate panel found Friday that Mordue should have issued some sort of injunction to keep Manwaring away from the store.

"While it is not our role to fashion the specific measures necessary to prevent the recurrence of Manwaring's misconduct and the resulting hostile work environment at KarenKim, we conclude that, at minimum, the district court exceeded the scope of its discretion in declining to order (a) that KarenKim is prohibited from directly employing Manwaring in the future, and (b) that KarenKim is prohibited from permitting Manwaring to enter its premises," the unsigned, 19-page opinion states.

Judges Gerard Lynch, Robert Katzmann and Richard Wesley decided the case.

In a concurring opinion, Katzmann proposed that courts place the burden of proof on employers to demonstrate their reform, after losing cases like these.

"I believe that, once liability under Title VII is established, the defendant-employer should first bear the burden of proving that equitable relief is not necessary to prevent the unlawful conduct from recurring; if the defendant-employer cannot meet its burden, then I believe a district court should be charged with determining, in its discretion, which specific forms of injunctive relief are necessary to prevent reoccurrence of the misconduct," Katzmann wrote.

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