Employee’s Harassment Claim Falls; The Employer Did Not Respond Negligently

by Cody Brookhouser

(402) 341-3070

When an employee alleges harassment by fellow employees or co-workers, the employer does not have an absolute duty to prevent the harassment and is not automatically liable for the harassment. Rather, the employee must prove that the employer was negligent in discovering or remedying the harassment.

In a recent decision from the Seventh Circuit (Cable v. FCA US LLC), a black employee who had worked for a company for 27 years, and was the only black employee on her team, complained of a black voodoo doll hanging from a white co-worker’s belt. The co-worker refused to remove it. However, after the employee complained to the labor relations supervisor, the co-worker did not display the doll again. Subsequently, the employee found the initials “NIG” etched into a control box at a workstation in the plant. Although the initials were removed by the company after a couple of days, the letter “N” was etched into the same control box a few months later. The employee again complained, and the labor relations supervisor investigated her complaint, painted and sanded over the vandalized workstation, and discussed workplace anti-discrimination policies with co-employees. Although the labor relations supervisor interviewed the 12 employees with access to this particular workstation in the plant, the company was unable to determine who was responsible for the etchings. The employee sued the company for hostile work environment based on racial harassment, and the company moved for summary judgment.

In analyzing the claim, the Court noted that the letters “NIG” and “N” could be found by a jury to be equivalent to the “n-word” and could constitute a racially hostile environment. It further noted that, although the employee was not directly targeted, harassment need not necessarily be directed at a particular person in order to be actionable. It is sufficient for the harassment to be directed toward an entire race in the workplace.

The Court then concluded that, even if the employee could show that the harassment was sufficiently severe or pervasive to constitute a hostile work environment, the employer was entitled to summary judgment. First, there was no evidence that the harassment came from a supervisor, so the company was not automatically, or strictly, liable. Rather, the plaintiff had to show that the employer was negligent in discovering or remedying the harassment. The plaintiff claimed that, had the co-worker who displayed the voodoo doll been disciplined more heavily, then the other incidents of racial harassment might not have occurred. The Court rejected this argument and pointed out that the co-worker never brought the voodoo doll to work again after being so directed by the company. It also pointed out that the company had sanded and painted over the etchings on her work station as a remedy. Although the employee alleged that she could still see the “shadow” of the letters, the Court noted that she failed to inform the employer of that fact. Finally, the Court likewise rejected the employee’s argument that the company was negligent in failing to immediately conduct an investigation when it did not interview employees regarding the etchings until several days after the employee’s complaint.

One lesson gleaned from this decision is that graffiti and similar hostile displays in the workplace should not be dismissed by an employer simply because they are not aimed at a particular employee. To the contrary, such general displays of hostility could be the basis for employer liability if the employer were to respond negligently. The decision also illustrates the fact that the employer’s appropriate response to allegedly hostile displays can provide a full defense to liability. That is, the employer has an affirmative obligation to take reasonable steps both to detect and prevent such hostile displays and, when it is made aware of such displays, the employer must investigate promptly and act to remedy the situation.

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