Tuesday, October 13, 2015

Just because harassment is offensive doesn’t make it illegal

Clifford Harris is a practicing member of the Voodoo religion. His co-workers at Electro-Motive Diesel often expressed their opinion about his religion, calling him “crazy” and describing it as “evil”. (For what it’s worth, they might not have been that off base—Harris once got called into a meeting with his supervisor after he was accused of blowing Voodoo dust on a co-worker.)

The issues came to head one day when Harris discovered that his co-workers had vandalized his locker:
At the end of his shift on February 20, 2010, Harris discovered additional graffiti on his locker that contained the phrases “Resputia,” “Damien,” “Ms. Melodie N Cliff,” “Call me now!!!! Mon,” “Dracula’s locker,” “Transylvanian Whore,” “Voodoo Bitch,” and Harris’s first name, “Clifford.” In addition, the graffiti included a caricature of Harris with red eyes and “cartoonish” moles—corresponding to where Harris actually has moles—a drawing of a snake, a drawing of a horned animal head, and a pentagram. Harris was also distressed to find a fluid-filled condom attached to the lock in such a way that unlocking the locker would require handling the fluid-filled condom.
In Harris v. Electro-Motive Diesel (N.D. Ill. 2/12/15), the court had little issue concluding that the graffiti was based on Harris’s religion:
The graffiti on Harris's locker contained references to the occult, voodoo, and the devil … which overtly mocked Harris’s religion. The caricature mocking Harris’s physical appearance, references to Harris’s name, and the graffiti’s location on Harris’s locker show that the harassment was unmistakably directed at Harris personally. Any reasonable person would take umbrage if the victim of similar religiously-themed vandalism. 
For similar reasons, a reasonable jury could also find that the graffiti was motivated by Harris’s religion. As discussed above, a jury could infer from the references to the occult, voodoo, and other religious symbolism that religious hostility motivated the vandalism….
That finding, however, did not carry the day for Mr. Harris. Instead, the employer’s quick response to Harris’s complaints won the case:
The graffiti and the condom were removed. EMD responded by warning employees in writing that such harassing or threatening behavior would be punished, possibly with termination, and implemented a policy of regular supervisor locker room checks. By Harris’s own admission, there were no more incidents of vandalism after EMD implemented these policies…. EMD’s prompt response was sufficient because not only was it “reasonably calculated” to end the harassment, it was successful in doing so. There is no basis in this record to conclude that EMD turned a blind eye toward the incident or failed to take sufficient steps to remedy the problem and to keep it from recurring.
This case is a great example of the difference between harassment and Harassment. There is no doubt that the graffiti was offensive and targeted at Harris’s Voodoo. Minds could differ on whether the harassment was severe and pervasive (this court thought it wasn’t; another court could just as easily see it the other way). What should not be in doubt, however, is the effectiveness of this employer’s response and corrective action. Within four days, the employer warned Harris’s co-workers to knock it off … and the harassment stopped. Case closed. Let this be a lesson on the importance of prompt and effective action to complaints of harassment.