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Monday, May 19, 2008

Another take on second-hand harassment

Remember Reeves v. C.H. Robinson Worldwide from a few weeks ago. It allowed a plaintiff to proceed with a sexual harassment claim even though she was not the target of the alleged offensive conduct. The 6th Circuit has now also weighed in on this issue of second-hand harassment (sort of), in Bailey v. USF Holland, which we discussed Friday. (Please follow the link for the background of the Bailey case.)

The district court found "that a wide variety of racially motivated harassment occurred at the Nashville terminal." The district court concluded that "some of the conduct was, on its face, clearly racially motivated – such as the continued use of the terms 'boy,' 'hey boy,' 'damn it boy,' and variations thereof, in the face of the plaintiffs' requests not to be called those terms, and after the racial implications of those terms had been clearly explained at sensitivity training sessions. ..." The district court also noted that the “more overtly racially offensive behavior, such as the statement 'I can call him a low-down, dirty nigger and he won't mind' sheds light on the otherwise unclear motivations behind some of the other incidents."

Defendant argues that the effect of this overtly racial statement was minimal because it was made by an hourly employee and merely overheard by Smith. Defendant also suggests that the employee apologized to Smith and that the two of them were friends. This misses the point. The district court did not conclude that this statement itself created a hostile work environment; rather, it found that this statement "sheds light" on what could otherwise be seen as the ambiguous motivations behind some of the other examples of harassment"

In an atmosphere in which fliers depicting one of the plaintiffs as "the boy," nooses, and various other forms of "boy" graffiti were absent, the court might be inclined to believe that the plaintiffs were overreacting when their coworkers slipped the word "boy" into the conversation in more subtle ways. But in a work environment that included nooses, offensive flyers, "boy" graffiti, and other frankly racist behavior, the court concludes that, indeed, the plaintiffs were being baited by white employees in additional, more subtle ways.

Defendant is correct that "merely offensive" conduct does not establish a hostile work environment. ... But after reviewing the totality of the circumstances, the district court concluded: "[i]t is unlikely that, after Mr. Bailey and Mr. Smith had spent years complaining about the terms, a white employee could end a sentence to either plaintiff with 'damn it boy' and mean no offense."

This seems like a much more sensible treatment of second-hand harassment than what a different court did in the Reeves case. The 6th Circuit does not say that the second-hand harassment is actionable in and of itself. Instead, it takes the position that the evidence of second-hand harassment is admissible to shed light on the offensive nature of the work environment itself. In other words, while the use of the word "boy" could be innocuous, coupled with the fact that one of its utterers refers to one of the plaintiffs as "a low-down dirty nigger" strongly suggests that "boy" is anything but innocent. Thus, the "low-down dirty nigger" comment is not actionable as harassment in and of itself, but as evidence of the intent of the word "boy."