What I’ve got for you today is another hostile work environment decision. But, unlike yesterday’s general civility code violation, well short of the pervasive or severe behavior that could interfere with an employee’s working conditions, today’s is a doozy. We’re talking about four instances of racial harassment: an offensive note, a noose, a written threat in the plaintiff’s locker, and then another noose.
And, yet, the plaintiff lost this case too.
How?
When the harasser is a co-worker, the plaintiff bears the burden of showing that the defendant’s response to the harassment was indifferent or unreasonable instead of acting promptly to stop the complained-of behavior.
What is reasonably appropriate corrective action? Examples include promptly initiating an investigation to determine the factual basis for the complaint, speaking with the specific individuals identified by the complainant, following up with the complainant regarding whether the harassment was continuing, and reporting the harassment to others in management.
Three of these events took place over 17 days. The fourth happened a few months later. Each time the plaintiff experienced one of these racial incidents, he complained to a supervisor. Each time, the company deployed an HR generalist to investigate. Her approach at times reflected her inexperience, and she never identified a culprit.
Still, the court concluded that the employer did enough to satisfy the requirements of Title VII:
[Defendant’s] response to the racial harassment was adequate because it took prompt action reasonably directed at determining the source of the harassment by listening to [Plaintiff], conducting a timely investigation, interviewing those potentially responsible, and following up with him frequently. Other factors that made [Defendant’s] response adequate include giving [Plaintiff] two days off after the first noose was discovered, warning shift employees that [Defendant] did not tolerate harassment, completing pre- and post-shift locker room walkthroughs, adjusting security cameras, making plans to relocate lockers, suspending a potential suspect, and offering [Plaintiff] a transition to the day shift.
Ultimately, each time the plaintiff complained, the defendant listened, investigated, and took preventative action. The law does not demand a perfect response. Instead, Title VII merely requires a reasonably prompt corrective response.