Just What Does A Racially Hostile Environment Look Like? The Eleventh Circuit Provides Some GuidanceWhat constitutes a racially hostile work environment? Is one really bad comment specifically aimed at the plaintiff sufficient or do you need a sustained series of racial comments? What if you have both but no evidence that it affects the person’s work performance? In Brenda Smelter v. Southern Home Care Services, Inc., d.b.a. Rescare Homecare, the Eleventh Circuit addresses those questions.

The Facts

From July 2 until September 9, 2013, Brenda Smelter, a black woman, worked for Rescare as a customer service supervisor. She struggled with her work and admittedly made errors, for which she was written up. On September 9, she got into a verbal altercation with a coworker and, given her prior performance issues and the fact that she was still in her probationary period, Rescare terminated her employment. Sounds pretty straightforward, right? Not so fast.

Although Ms. Smelter admits her skills may have been lacking, she claims that nearly every day of the eight weeks that she worked in Rescare’s Perry office two of her white coworkers made racist comments to each other. She testified that another customer service supervisor said:

  • Black men were “lazy” and “the scum of the earth.”
  • Black women “had babies on welfare.”
  • President Barack Obama’s “big ears” made him look “like a monkey.”
  • She did not know that black people could be buried on Sundays.
  • Smelter’s hair made her look like a “mixed monkey” from the movie Planet of the Apes.

Smelter said that the office manager also made racist remarks, including that she saw black people exiting a bus at a Walmart store and commented that it looked like they were “chained together” and that she wished she could “send them all back . . . to Africa.” Although she never reported these comments to a supervisor until the last day of her employment, she testified that the branch manager overheard at least some of the remarks and that these racist comments were “funny to everybody that worked in the Perry office” with her, even the branch manager.

The most severe comment came on Smelter’s last day at work, when she got into a heated discussion with the other customer service supervisor who allegedly jumped up, hit her desk in a rage, and said “get out of my office . . . you dumb black n       .” The branch manager investigated the altercation, and Ms. Smelter alleges that she told her about the prior racial comments and the epithet. Rescare concluded that Ms. Smelter started the altercation and terminated her employment.

Ms. Smelter sued for a racially hostile work environment and claimed that Rescare terminated her both because of her race and in retaliation for her report to the branch manager about the racial comments. Rescare moved for summary judgment, and the district court granted it. Ms. Smelter appealed.

The Eleventh Circuit’s Decision

The Eleventh Circuit agreed with the district court on the termination claims. The court found that Ms. Smelter had not offered evidence that Rescare’s reasons for terminating her were a pretext for race discrimination or retaliation. However, the court overturned the decision on the hostile work environment claim.

The court focused on whether Ms. Smelter had established that the harassment was sufficiently severe or pervasive to alter the terms of her employment and create a discriminatorily abusive working environment. It looked at four factors, assessing whether a reasonable jury could find it severe or pervasive:

(1) The frequency of the conduct – Eight comments in the two months was sufficiently frequent.

(2) The severity of the conduct – The negative comments about black people made around Ms. Smelter, capped off with the epithet directed to her on her last day, were sufficiently severe.

(3) Whether the conduct is physically threatening or humiliating, or a mere offensive utterance – Although the conduct was not necessarily physically threatening, the daily racial comments were sufficiently humiliating.

(4) Whether the conduct unreasonably interferes with the employee’s job performance -Although Ms. Smelter had little or no evidence that the conduct interfered with her work performance, “considering the totality of the circumstances, particularly the daily frequency and extreme severity of the harassment, including racist remarks made directly to Smelter about her” the other three factors sufficed.

Finally, the court found that a reasonable jury could conclude that Rescare had actual notice of the racial comments because Ms. Smelter testified that the branch manager overheard some of the remarks and thought they were funny.

Keep in mind that the court has to view the evidence in the light most favorable to Ms. Smelter. In this case, the coworkers denied making any racist comments, and the branch manager denied hearing any such comments or thinking they were funny.

Takeaways

First, the court comes close to saying that the one incident with the racial epithet could be sufficient. Do not assume one time isn’t enough to make it a federal case.

Second, that an employee does not report harassment is not evidence that it didn’t bother him or her. The court specifically notes that an employee’s failure to report harassment is not dispositive of whether the employee perceived the environment as hostile or abusive. So, if a supervisor witnesses conduct that may be close to the line but the employee does not react to it—investigate. Do not assume it will go away.

Third, an employee does not have to prove the harassment unreasonably interfered with work performance. If the other factors are strong, the absence of this one is not fatal.

Finally, Rescare won the termination claims. Given that the company terminated someone the same day that she reported that she had just been called the N-word, that is pretty amazing. Apparently Rescare had properly documented Ms. Smelter’s performance deficiencies. So, make sure you are addressing performance issues, even with probationary employees.

Revamping Your Anti-Harassment ProgramsIn the wake of the #MeToo movement, I have clients wanting to know what they can do both to improve their workplace and protect themselves. They all have good policies and regularly train supervisors and employees on them. So what’s next? Although there is no silver bullet, I suggest you start with the following three things.

Review Your EEO Policy

Although most EEO policies are pretty straightforward, they can always use a little polishing. Does the policy mention all of the protected categories that apply to all of your locations? As a company grows, it can find itself with employees in states or municipalities that have classifications that are not covered in the federal laws. Many states have laws explicitly prohibiting discrimination based on sexual orientation and gender identity. Additionally, a number of federal circuit courts have ruled that Title VII’s prohibition against sex discrimination also covers discrimination based on sexual orientation or gender identity. Then there are municipalities that have covered even more categories. For example, Washington, D.C.’s Human Rights Law prohibits discrimination based on marital status, personal appearance, family responsibilities, matriculation and political affiliation.  Be sure your EEO policy is keeping up.

Review Your Harassment Policy

You need to update your harassment policy like you are updating your EEO policy. In addition to making sure the protected categories are broad enough, think about beefing up your reporting processes.

For years I have preached to clients that they need to have centralized reporting rather than having employees report to any supervisor. It is not that I want to make it hard to report—however, front line supervisors are in a tough spot. They may not have the skills to handle a complaint. Also, front line supervisors are more likely to know a lot about the complainant and the alleged perpetrator and handle it themselves. You don’t want someone discounting a report because “everyone knows the complainant is a liar” or “I know he didn’t mean anything by that.” Those are not good legal defenses.

I am coming to the conclusion that reporting hotlines, including the ability to report anonymously, may be the best options. Properly run hotlines get reports to the right people sooner. Also, if someone has the ability to report anonymously, it makes a later argument that he or she didn’t want to report because they would suffer retaliation a lot less convincing. Investigating an anonymous report presents challenges, but I think it is better to investigate what you can.

And another thing—really think about whether you want to say you have a zero tolerance policy. I find that is easily misinterpreted to mean that anyone found to have violated the harassment policy will be terminated. Is that really what you mean? I find that sexual harassment policy violations can come in a lot of different packages, ranging from unintended, thoughtless comments to boorish behavior to sexual assault. Although you can decide that you will treat all of those events the same, do you want to? In some ways, such a one-size-fits-all approach discourages complaints about behavior that we want to change, but that doesn’t deserve termination.

Revisit Your Training

Train people, and track it. New employees and new supervisors should complete training either before or shortly after they start. Everyone should go through training of some sort periodically. California requires everyone to be trained at least every two years. The State of New York has just enacted a law  that requires employers to provide annual sexual harassment prevention training.

What should your harassment training look like? New York’s new law comes with model training, including minimum standards, for employers to use. Saying that you met those standards, even if you didn’t have to, wouldn’t be a bad fact in defending a claim. So, even if you don’t have employees in New York, it may be worth looking at this material to see if there are parts you want to use.

Get company leadership on board. Having senior leadership (not just HR) involved in training gets employees’ attention and sends the message that this is important. It also gives you the opportunity to talk about workplace culture and respect for each other—more than just saying “don’t harass each other.”

Get feedback from the participants. Give them a chance to ask questions or take a test to be sure they got the message. Send a follow-up message to get feedback and see what stuck.

Court Not So Hostile to Employer in Hostile Work Environment CaseLest you think that no one can win a hostile work environment claim, we have some positive news from the Second Circuit. In Russell v. New York University, et al., the court issued a summary order (which does not have precedential effect but is citable) affirming a summary judgment order in favor of NYU and Robert Squillace, the associate dean for Academic Affairs.

Facts

Dr. Suzan Russell sued two coworkers, Joseph Thometz and Eve Meltzer, for creating a hostile work environment by their alleged treatment of her, including anonymous, inappropriate emails that she believed came from them. She also sued her employer, NYU, and Squillace claiming that they failed to stop this behavior, causing her to suffer discrimination and harassment because of her gender, sexual orientation, religion and age. (She also claimed NYU and Squillace retaliated against her for complaining about it.)

The court’s brief opinion relied on the defendants’ policies and procedures. NYU had a “robust internal complaint system,” which Russell admitted that she had availed herself of numerous times. Instead, Russell claimed that defendants’ efforts to remedy the harassment “fell below an objective standard of reasonableness.”

The court disagreed with Russell, agreeing with the lower court that defendants dealt with each of Russell’s complaints “quickly and in proportion to the level of seriousness of the event.” There was an internal investigation in which NYU checked IP addresses that Russell provided and attempted to engage the Manhattan District Attorney’s Office. The court noted that Russell ultimately told NYU to stop contacting the DA, as that was not their business. The fact that NYU was unable to stop the harassment and did not “warn” the employees that Russell suspected them of being responsible for the harassment was not legally sufficient for her to survive summary judgment.

“An employer need not prove success in preventing harassing behavior in order to demonstrate that it exercised reasonable care in preventing and correcting the harassing conduct.”

The court noted that there “is only so much that NYU—a private university lacking the subpoena power of a government agency—can do to investigate misconduct” and that NYU had no duty to take steps against individuals based “solely on her speculative say-so.”

Takeaways

This order is good news for employers. Even though NYU’s efforts were ultimately not successful—and the harassment continued—it won on summary judgment. The Second Circuit’s order makes clear that an employer’s defense to a hostile work environment claim is not measured by its success. If you have (1) a policy prohibiting harassment, (2) effective complaint procedures, and (3) a thorough investigation, even if you do not stop the harassment, you can win. Your reasonable efforts can be enough.