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Sexual harassment charge reinstated on eyewitness accounts

Posted On: Aug. 3, 2017 2:24 PM CST

Sexual harassment charge reinstated on eyewitness accounts

A federal appeals court has reinstated a sexual harassment charge filed by a car inspector, pointing to two eyewitness accounts of an incident in a divided opinion.

Michelle Nischan was hired as a car inspector by Fisher, Indiana-based Stratosphere Quality L.L.C., which provides third-party inspection and quality control services to car manufacturers, in June 2012, according to Wednesday’s ruling by the 7th U.S. Circuit Court of Appeals in Chicago in Michele Nischan v. Stratosphere Quality L.L.C.; FCA US L.L.C. f/k/a Chrysler L.L.C.; and Abbas Sabbah.

One of Stratosphere’s major clients was Auburn Hills, Michigan-based Chrysler. Ms. Nischan said she was “relentlessly” sexually harassed by a Chrysler employee who routinely rubbed himself against her and made offensive comments, among other actions.

In one incident, Ms. Nischan said the employee rubbed himself against her in a work trailer in front of a supervisor and a colleague. She said she ran out of the trailer crying and the colleague came out to console her.

In 2012, after she had made a mistake in a demonstration before her crew, the Chrysler employee demanded she be removed from the lot. Stratosphere suggested she seek work at another lot, but she filed for unemployment instead.

She then filed suit in U.S. District Court in Rockford, Illinois, charging Stratosphere, Chrysler and the employee with sexual harassment, sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Illinois Human Rights Act. The District Court granted the defendants summary judgment dismissing the case.

An appeals court panel reinstated the sexual harassment charge, in a 2-1 ruling. Stratosphere can be held liable for sexual harassment “if it knew or should have known of the harassing conduct yet failed to act,” said the ruling.

“In these cases, the employer is charged with having constructive notice of the harassment … Nischan contends that the evidence in the record supports her argument that Stratosphere had constructive notice. We agree,” said the ruling pointing to the incident in the trailer.

Both observers, it said, “had the duty under the employee handbook to report any observed sexual harassment,” said the ruling, in reinstating the sexual harassment charge. The majority ruling upheld dismissal of the other remaining charges against all the defendants.

The dissenting opinion says, “I agree with our court’s opinion on all other issues, but I do not agree that Nischan has alleged sufficient facts to sustain a finding that Stratosphere was on constructive notice that Nischan was being sexually harassed” by the Chrysler employee.