Harmon & Davies, P.C.

In a recent Equal Employment Opportunity Commission (“EEOC”) suit brought against a construction contractor, the EEOC established that a construction site where three black employees worked constituted an objectively hostile work environment under Title VII of the 1964 Civil Rights Act (“Title VII”) based upon evidence that: (1)  the employer was aware that a white supervisor regularly used racial slurs at the construction site; (2) the portable toilets at the site were covered with racist graffiti; and (3) the human resources manager also used a racial slur during a safety meeting.

In EEOC v. Holmes & Holmes Indus. Inc., a federal court found that no reasonable jury could conclude that a reasonable African-American would not be offended, even in a blue collar setting, by the type of conduct at issue in the case.  Nonetheless, even though the court found the at-issue conduct sufficient enough to establish an objectively hostile work environment, the court held that the case still has to be submitted to a jury to determine if the three black employees found the workplace subjectively, or in other words, personally offensive.  Indeed, in order to recover, the employees will have to prove that they personally viewed the conduct as offensive.

It appears likely that a jury will find that the employees found the conduct subjectively offensive because a significant amount of evidence shows that the employees were offended.  The employees complained to management about the alleged offensive speech and on at least one occasion, one of the employees stormed out of the room after such language was used.  However, there is a possibility that a jury might find otherwise because there is some evidence to suggest that the employees did not seem bothered by the conduct.  For example, two of the employees socialized with the allegedly offending supervisor outside of work, which evidence the employer might use to show that the employees were not subjectively offended by the supervisor’s conduct.

However, when the employer tried to use such evidence to argue that the employees could not prove an objectively hostile work environment because the employees were “friends” with the offending supervisor, the court rejected the argument stating that the test for determining whether an environment is objectively hostile is whether a reasonable person would have found the environment objectively hostile.  The court noted that there is no case law supporting the position that a supervisor’s belief that he was friends with his subordinates allows him or the employer to avoid liability for creating a hostile environment.

In finding that the employer created an objectively hostile work environment, the court pointed out flaws in the company’s anti-harassment policy and the lack of evidence showing that the employer had appropriately disciplined the offending supervisor after receiving complaints from the employees.  Although the company had a written anti-harassment policy, it did not specifically mention racial harassment or include an alternative avenue for complaint if a supervisor is the alleged harasser.  Additionally, the court noted that the company did not provide employee training on its anti-harassment policy during the relevant time period.

The court also noted that if a jury finds a racially hostile work environment, the employer will be vicariously liable for its supervisor’s actions because it cannot prove the affirmative defense set out in Faragher v. BocaRaton and Burlington Industries Inc. v. Ellerth.  Under those cases, an employer proves the Faragher/Ellerth defense to avoid vicarious liability under Title VII if the employer can show that it: (1) exercised reasonable care to prevent and correct promptly any racially harassing behavior; and (2) the employees unreasonably failed to take advantage of any preventative or corrective opportunities.  In the Holmes case, the court found that because the employees repeatedly complained to the employer’s management about the alleged harassment, the employer could not meet the second element of the Faragher/Ellerth defense.  Moreover, even if the employer could meet the second element, the court said that there was no way that the employer could meet the first element because it is well established that the mere institution of a policy alone is not sufficient to satisfy the first prong of the affirmative defense.  Because the employers’ policy in Holmes did not mention race or racial harassment and did not provide an avenue to bypass a harassing supervisor when making complaints, the court found the employer’s policy to be unreasonable as a matter of law on the grounds that it directed victims to report discrimination to their harassing supervisor and provided no alternative means to bypass the supervisor.

As a side, the Court also held that the employee’s use of allegedly offensive words outside of work, particularly in the form of rap music that two of the employees sang, is irrelevant and inadmissible at jury trial.

Lessons for Employers:  Employers should double check their anti-harassment policy to ensure that their policy makes reference to race or racial harassment and that the policy has an avenue to bypass a harassing supervisor when making complaints.  Employers who substantiate harassment complaints need to take disciplinary action and keep written documentation of what discipline was taken.  Employers who are aware of employees using racially offensive language at work should not turn a blind eye.   Employers must show that they are committed to enforcing their anti-harassment policies.  In addition to disciplining employees who violate anti-harassment policies, employers can show their commitment to their policies by routinely having employees participate in anti-harassment training.

The attorneys at Harmon & Davies, P.C. are here to assist employers with drafting and enforcing their anti-harassment policies and we also offer anti-harassment training for your employees.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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