How?!?!?!?!?
In McKinney v. G4S Government Solutions, Inc. (opinion here), an African-American employee claimed that his employer fostered a racially hostile work environment. Among other things, the plaintiff alleged that:
- a co-worker used the n-word in his presence;
- a fire chief told the plaintiff that the company had hired a “colored boy”;
- a co-worker showed the plaintiff a noose at work, while another co-worker commented, “I know what to do with that. I can use that around my house” (referring to his African-American neighbors); and
- A co-worker displayed a white sheet over his head so that it formed a triangle-shaped cylinder that looked like a KKK hood.
But, the employer prevailed.
How?!?!?!?!?!?
The importance of a policy and taking all complaints of harassment seriously.
As long as the victim is not subjected to any tangible employment action, once a company learns about discrimination in the workplace, it can avoid liability provided that it satisfies two criteria. First, the employer must exercise reasonable care to correct promptly any harassing behavior. Second, the employer must show that the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. This is called a Farragher/Ellerth Defense.
Here, the court concluded that there was no tangible employment action taken against the plaintiff.
As to the first prong, the employer established that it had an anti-harassment policy and, once the plaintiff complained, the company investigated, required some of the alleged bad actors to undergo diversity training, another was suspended, while another was fired. In all, the court felt that these steps were reasonable.
Now, regarding whether the plaintiff unreasonably failed to take advantage of the defendant’s preventative or corrective measures, the court noted that the defendant’s anti-harassment policy required an “immediate” report to a supervisor, manager, or HR. However, the plaintiff did not report these issues right away. Rather, he waited to complain because he feared retaliation. And, here’s the thing. “Failure to report harassment because of a generalized fear of retaliation or belief in the futility of reporting harassment deprives the employer of an opportunity to take corrective action and does not justify the failure to report.” Therefore, the employer was able to establish the second prong of its defense.
Summary judgment for the employer.
And I’ll wait while you management-side lawyers bookmark this post to cite in a future brief.