Tuesday, April 19, 2022

Harassment complaints don’t require a “perfect" response, just a “reasonable” one

Ronald Burns, a maintenance technician at Berry Global, was the victim of three instances of racial harassment over the span of 17 days.
  • Burns found a piece of cardboard in his locker that read, "dance monkey." He complained to HR.
In response, HR spent several days reviewing security camera footage in an attempt to discovery the perpetrator, which it could not do. The plant manager also met with the entire shift and advised that such harassment would not be tolerated. 

  • Four days later Burns found a noose hanging from the lock on his locker. He again reported the harassment, this time to his supervisor and to the company's ethics hotline.
In response, the plant manager gave Burns the weekend off with pay. Pre- and post-shift walkthroughs of the locker room were also started to seek any offensive items. HR interviewed 19 employees but could not lock down a suspect. Finally, the company adjusted the cameras to offer better coverage.

  • 13 days later, Burns found yet another piece of cardboard in his locker, but this time it read, "die n*****." He again reported it to harassment.

After reviewing more camera footage, the company narrowed its investigation to one suspect, present in the locker room prior to all three incidents. All employees were also re-interviewed, and the suspect was suspended without pay even though he could not be confirmed as the culprit. Finally, Burns was offered a transfer to a different shift, which he declined. 

Five month later, Burns found a noose attached to his toolbox. This time, instead of complaining to management he quit and filed a racial harassment lawsuit. 

At issue in Burns's lawsuit was Berry's response to his complaints — whether it had "manifest[ed] indifference or unreasonableness in light of the facts the employer knew or should have known," or whether it "tolerated or condoned the situation or that the employer knew or should have known of the alleged conduct and failed to take prompt remedial action." 

The 6th Circuit concluded that Berry adequately responded and upheld the trial court's grant of summary judgment. It also noted, however, some key deficiencies in the company's response.
  • Despite the repeated harassment, Berry never conducted any harassment, discrimination, or sensitivity training.
  • It did not begin interviewing employees until after the discovery of the first noose, four days after Burns reported the "dance monkey" note.
  • It allowed an HR generalist to conduct the investigation, even as the incidents continued and escalated, and instead of involving more senior and with more experience, or an outside investigator or attorney.

Yet, despite those deficiencies he court still affirmed the dismissal of Burns's lawsuit because Berry did enough in response.
Title VII requires a reasonably prompt corrective response, not a perfect response. Burns undeniably suffered heinous racial harassment while employed by Berry. But Berry took prompt—if shy of perfect—action that was reasonably directed at determining the source of the harassment. 

It's easy to Monday-morning quarterback any harassment investigation. Perfection, however, is not the standard to which the law holds employers; it's a standard of reasonableness. And in this case, the employer responded reasonably enough to support its investigation and to defeat the employee's harassment claim.