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June 06, 2011
Case Demonstrates Appropriate Response to Employee Complaint of Racial Bias

During training, make sure supervisors and managers understand the company’s antiharassment policy and their duty to report employee complaints of harassment. A recent court case provides an example of a supervisor’s appropriate response to a complaint, as well as an explanation of why the employer was not liable when the harassment continued. This might be something to incorporate into your company’s training.

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What Happened

On May 22, 2006, “Drake,” an African-American male, was hired by Moulison North Corporation, a Maine-based electrical utility contractor that specializes in the installation and repair of large lighting systems such as airport runway illumination.

He worked on a project with three white males. As the worker with the most seniority, “Justin” functioned as the lead worker and allotted daily work assignments in the absence of their supervisor.

Almost immediately, Drake was subjected to racial slurs and epithets from one of his co-workers. On one occasion, Justin overheard an inappropriate remark and told the co-worker that he should stop. After Drake told Justin about another comment, Justin told Drake’s co-workers that they should refrain from making such comments.

Justin temporarily separated the two co-workers from Drake by assigning to work in different areas. Drake complained to Justin that the behavior continued, but Justin took no further action.

The company’s antiharassment policy directs employees to report harassment to a supervisor or to the owner/chief executive. On June 5, Drake called the owner to complain.

The next day, the owner confronted Drake’s two co-workers at the jobsite, and neither denied the allegations. The owner became irate and said that any further incidents of harassment would result in their immediate termination.

He apologized to Drake and said future complaints should be directed to him; however, Drake thought he was supposed to report any acts of harassment to Justin first.

The racial epithets continued, and Drake was subjected to several incidents that he considered to be racially discriminatory. For example, one co-worker slapped him on the hand with a live electrical wire, and there were occasions when his water bottle had been contaminated with dirt, gas, or oil. His co-workers repeatedly yelled and swore at him and refused to assist him with his work. Drake complained to Justin, but Justin did not take corrective action.

Drake had ready access to the owner at the job site and via telephone, but never informed the owner of the continuing harassment—nor did he complain to the site supervisor.

After suffering a back injury on September 28, Drake went out on disability and never returned to work.

He sued the company, asserting hostile work environment and retaliation claims under Title VII of the Civil Rights Act of 1964. The district court rejected his claims of employer liability and ruled in favor of the company. Drake appealed the decision on the hostile work environment claim to the U.S. Court of Appeals for the 1st Circuit, which covers Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

What the Court Said

Drake contended that his employer was liable for the initial harassment because the owner’s discipline of the co-workers was inadequate, and also that the employer is liable for the subsequent acts of harassment because his continued complaints to Justin put the company on notice of the harassment, yet no further action was taken.

To successfully impose employer liability, Drake had to show “that the employer knew or should have known about the harassment yet failed to take prompt and appropriate remedial action,” the court explained.

In response to the initial harassment, the court said that “the company’s response was both swift and appropriate.”

Regarding the subsequent harassment, Drake argued that Justin was a supervisor because Justin had been trained in the company’s antiharassment policy, which gives supervisors the duty to respond to, and report, harassment complaints. However, the court noted that Justin received that training after the events relevant to this case and was not promoted to supervisor until 2007.

Although Drake thought he was supposed to report any further problems to Justin first, the court said there was no evidence that the owner directed him to do so. In addition, the court said Drake was aware of the company’s antiharassment policy and that he failed to adhere to it (i.e., he did not report subsequent incidents of harassment to a supervisor or the owner).

The appeals court affirmed the district court’s decision, saying there is “no principled basis for imposing employer liability” in this case. “… [T]he blame lies squarely with the offending coworkers; the employer, when notified of what was happening, took prompt and appropriate corrective action.”

Wilson v. Moulison North Corporation (No. 10-1387) (U.S. Court of Appeals, 1st Cir., 3/21/11)

In Brief

Supervisors and managers should be trained on their responsibilities under their company’s antiharassment policy. In this case, the court noted that if Justin “had apparent authority to accept notice [of discrimination] for the company, this claim might have some bite.”

In addition, this case demonstrates the importance of providing diversity training to all employees, as well as investigating and responding to discrimination complaints in a timely manner.

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