Sexual harassment of prison staff by prison inmates is a difficult issue. Courts have rightly held that harassment by inmates can be actionable when the employer fails to take reasonable steps to combat it, but prisoners are not employees and are already incarcerated, so they require very different remedies than those generally used in the workplace.

The Seventh Circuit recently addressed the issue of harassment by prisoners in Howard v. Cook County Sheriff’s Office and County of Cook, Case No. 20-1723 (7th Cir. Mar. 4, 2021). The Howard case was brought by 10 women who worked in or for the Cook County Jail. Around 100,000 inmates pass through that facility each year, and it houses an average of 6,500 inmates on any given day. The crux of their claim was that women working in the facility were constantly subjected to sexual harassment by inmates. They supported their claim with more than 1,700 filed reports of sexual harassment by male inmates, affidavits and the jail’s own policies, and they sought certification of a class of approximately 2,000 nonsupervisory women who worked in the jail or the adjacent courthouse.

Obviously, women working in different capacities in a prison have different experiences. Some women work directly with prisoners. Others, such as accountants or programmers, may have no contact with prisoners. Some, like medical staff, have only minimal or occasional contact. To tie these experiences together to unify the proposed class, they relied upon an expert who propounded a theory of “ambient harassment.” That theory was described as “the experience of working in an environment highly permeated with sexually offensive and degrading behavior, that is, a highly sexualized atmosphere in which crude and offensive sexual behavior is common and employees see it is normative, whether specifically directed at them or not.” Put another way, at least as the district court found, it was intended to extend the evidence of hostile environment to those who did not directly experience it. 

The district court initially certified a class with the “ambient harassment”” theory providing the necessary “commonality.” The defendants sought and received a 23(f) interlocutory appeal, during which time the district court narrowed the class to exclude those with no prisoner contact and apparently abandoned the ambient harassment aspect of the case. Upon remand, the district court certified the case again, but, while ambient harassment seemed to be the element of commonality, it also appeared that the district court had rejected the report of the plaintiffs’ expert. Note, incidentally, that this ruling on the expert report was likely prompted by a similar attempt to use expert testimony in the seminal case of Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). We blogged the issue of experts in that case here.

On a second appeal, the Seventh Circuit largely sidestepped the issue of whether ambient harassment could be a viable theory, particularly in the penal context, but agreed that given the rejection of the expert report, it was no longer an issue in the case, and thus no commonality existed. It therefore decertified the case.

Much as with the “production dichotomy” in wage and hour litigation, one might question whether an “ambient harassment” theory adds anything to the analysis. Courts and agencies have already long accepted the “hostile environment” theory of sexual harassment, and it already encompasses situations in which harassment is “sufficiently severe or pervasive to create an objectively hostile work environment.” Here, as the Seventh Circuit observed, the plaintiffs might have better pursued hostile environment claims on behalf of smaller groups of workers with situations and claims that were more alike to each other.

The bottom line: A focused class definition beats a novel theory.