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."

In responding to harassment complaint, prompt means prompt

In Bailey v. USF Holland, the 6th Circuit had occasion to examine whether the employer's response to two African-American employees' claims of racial harassment was sufficiently prompt to defeat liability. This case provides a good case study from which companies can learn how, and how not, to respond to an employee's internal complaint.

Bailey and Smith, both African-American, were dock workers for USF Holland. Throughout their employment, their white coworkers constantly subjected them to the word "boy." When they would complain to their coworkers that the word "boy" is offensive when directed at a black man, they would sarcastically respond, "damn it boy." The more they complained, the more serious the harassment would become. It moved from words to vandalism, including "boy" spray painted on equipment, etched into walls, used to depict black men in cartoon drawings, and even written on a calendar on MLK Day. The harassment was not limited to the use of the word "boy." Bailey discovered a noose hanging in the dock area, and Smith overheard one white coworker telling another that he liked Smith because he could call him "a low-down dirty nigger" and Smith would not do anything about it.

Two years after Bailey and Smith started complaining to management about the offensive use of the word "boy," a new terminal manager and the VP of HR decided to conduct "sensitivity training" at the terminal. During that training it was explained that "boy" was offensive to African-Americans because it was used as a racial epithet during slavery. During the training, "several white employees voiced resistance to the idea that it was wrong to refer to African-American men as 'hey boy' or 'damn it boy.'" One white employee, Fred Connor, even told the terminal manager that "boy" was a "southern thing" and he would continue to use it regardless of company policy.

Not surprisingly, the behavior continued for several months after the training, as did Bailey's and Smith's complaints to management. At that time, USF brought in an outside lawyer who conducted a three-day investigation. He concluded that "while the environment likely is not racially hostile [huh?], it is certainly one in which more sensitive employees can feel uncomfortable." As a result, the VP of HR wrote to Bailey and Smith, telling them that the company could not discipline any employees because the use of "boy" was not racially motivated and that everyone had denied the other alleged conduct.

As the graffiti and harassment continued, USF hired a handwriting expert and terminated the offending employee, Fred Connor. He filed a union grievance and was reinstated. After his reinstatement, Connor reiterated to the terminal manager that "he would not adhere to the policy and would continue to use the word 'boy' as he saw fit."

Finally, in 2006, 4 years after Bailey's and Smith's first complaint and a year after they filed their lawsuit, USF installed 25 security cameras, which finally ended the graffiti.

At a bench trial, the district court judge awarded Bailey and Smith each $350,000 in compensatory damages.

On appeal, USF argued that it could not be liable for the harassment because it took "reasonable, prompt, and appropriate corrective action." The 6th Circuit disagreed:

Defendant cites examples of its corrective action, noting for example that it "consistently had a reasonable harassment policy," conducted employee meetings to respond to plaintiffs' complaints, and disciplined the employee responsible for the graffiti. The district court correctly rejected these actions as insufficient. A harassment policy itself means nothing without enforcement, and the persistent harassment plaintiffs received over an extended period of time caused the district court to conclude that the policy was not consistently enforced. Defendant conducted employee meetings, but plaintiffs' coworkers stated that they did not consider their use of "boy" to be offensive and insisted that they would continue to use it. Defendant discharged Connor once it discovered that he created the graffiti, but he was reinstated soon thereafter. USF Holland was unable to stop the graffiti until it installed security cameras – an act it did not take until after plaintiffs initiated this lawsuit.

Termination of the alleged harasser is not the be all and end all of corrective action. Usually courts do not second guess an employer's course of remedial action. Indeed, had the sensitivity training succeeded in ending the harassment, I doubt that Bailey and Smith would have prevailed. When, however, the offending employee tells the VP of HR during sensitive training that he will continue calling black employees "boy," and others offer similar resistance, a company cannot turn a blind eye and hope that everything will work out. By the time employees started being disciplined and security cameras were involved, it was "too little, too late."

The timeline in this case spanned nearly 4 years from the first complaint to the installation of the cameras. In a case such as this, 4 weeks might not even be quick enough of a response. The severity of the response (i.e., counseling, discipline, termination) can vary depending on the severity of the harassment, but the quickness of the response cannot. Companies that allow problems such as these to fester and continue by dragging their feet in investigating and remedying them do so at their own peril, as the $700,000 verdict in this case illustrates.

What I'm reading this week #31

In my absence last week, I completely missed my blogiversary. It's been a little over a year now since I launched the Ohio Employer's Law Blog with my first post, The Song Remains the Same -- Has Burlington Northern Really Changed the Landscape of Retaliation Claims? A quick thank you to all of my subscribers, commenters, everyone who's linked to me, provided an idea for a post, and quoted me both online and in print, and to the more than 26,000 people who've visited. Without each of you, I highly doubt I would still be writing more than a year later.

And with that, on to the best of everything else I've read this week.

In Desert Palace v. Costa, the U.S. Supreme Court held that direct evidence of discrimination is not required to obtain a "mixed-motive" jury instruction. The HR Lawyer's Blog reports on a significant case out of the 8th Circuit this week that flat out disagrees with the Supreme Court. So much for stare decisis.

As someone who cannot get a lick of work done without music playing in the background, I was keenly interested in HR World's take on personal technology such as iPods in the office.

For similar personal reasons, I was also very interested in Guerilla HR's take on bad language in the workplace. For a good laugh, be sure to click through to the Cuss Control Academy.

The Business of Management asks if you have an "office spouse"?

Dan Schwartz at the Connecticut Employment Law Blog writes on the worth of companies that sell workplace posters.

The Evil HR Lady posts on the value of exit interviews.

Finally this week, The HR Capitalist gives one scenario of what can happen to a company when it tries to regulate the use of overtime.

Do your policies cover electronic message boards

The National Law Journal reports that "message boards in the workplace could be a troublesome new source of liability for employers." Many companies have policies that cover the use of traditional bulletin boards. What happens, however, if an employee posts on a company-owned message board that he wants to start a union? Can the company lawfully take action against that employee? What other liability risks do online message boards pose for employers?

DynCorp Inc. v. NLRB sets the standard for employer regulation of bulletin board use in the Sixth Circuit. Like many companies, DynCorp had a bulletin board in its employee cafeteria. Shortly after a union organizing campaign began, an employee posted a pro-union flyer on the bulletin board. A manager removed the flyer and threatened to discipline the employee who posted it. Shortly thereafter, the company designated the bulletin board "For DynCorp Business Use Only." DynCorp unsuccessfully argued that the bulletin board was for company use only and that the Company had consistently removed employee postings on the bulletin board in the past. The Court cited examples of other non-business related postings remaining on the bulletin board. Moreover, no employee had ever been disciplined, or even warned, for posting non-business related materials. Regardless of any policy, the employer's lack of consistency created a practice of allowing non-business related postings, and it was therefore unlawful to remove the pro-Union posting and threaten the employee.

As DynCorp illustrates, consistency is key. If a company want to limit online message boards to discussions of company business only, it must not only have a clear policy stating so, but it also must actively police the message board to prevent violations of the policy. A company cannot turn a blind eye to all sorts of non-troublesome non-business threads, but delete the first thread the pops up talking about a labor union. That selective enforcement is asking for trouble with the NLRB.

Liability risks do not end with the NLRA. Online message boards also present risks from employees who use them as a means to harass or defame a coworker, or post trade secrets and other sensitive confidential information. If a company is going to maintain an online message board, it should be incorporated into sexual harassment policies, technology use polices, and confidential information policies, so that employees understand that online malfeasance will not be treated any differently than any other workplace misconduct.

Of course, policing a message board is much more difficult, time consuming, and expensive than the traditional cork board hanging in a lunch room. That difficulty makes me wonder whether companies are just better off not having employer sponsored message boards in the first place.

Is mommy bias real?

The Cincinnati Enquirer writes that "anti-mommy bias persists. There's an assumption that once a woman becomes a mother, she won't be as competent at her job or as committed or dependable - without the employee ever getting the chance to prove herself." The article continues:

Mother's Day recognizes mothers for their dedication, resourcefulness and persistence. But some working mothers say that on the job, they're viewed in opposite terms. They say employers see them as less reliable, focused and committed than their co-workers, and weed them out of job interviews or bypass them for promotions. 

The practice has been labeled maternal profiling, and it is the source of a growing body of discrimination lawsuits being filed against employers. 

According to the Center for WorkLife Law at the University of California's Hastings College of Law, family-related discrimination cases increased by 400 percent from 1996 to 2005. Some workers sued because they were questioned about their marital status, family plans or child-care provisions during job interviews, then promptly dismissed. Other mothers say they were taken out of contention for jobs that required travel, long hours or physical labor.

But, does the empirical data support the popular notion of maternal profiling. HR World reports on a survey done by Adecco, the staffing firm, which suggests that mommy bias might be more fiction than reality:

Think what you want about parents in the workplace, but a new survey from Adecco found that 71 percent of working moms are likely to work late and respond to emails. That’s only two points below non-parents. However, 32 percent of workers would be less likely to ask working parents to stay late or answer emails after hours. 

Nonetheless, 49 percent of moms believe their companies should do better at helping achieve work/life balance. 

According to the survey:

• Do Moms Have It Better When It Comes to Access to Work/Life Balance?: Depends on who you ask! 60% of working moms think they have the same level of access to work/life benefits as non-parents. Less than half of non-parents (44%) agree with the statement and one in four (25%) non-parents think they have less access.
• Which is Harder to Manage?: According to working moms, managing career is a piece of cake next to managing family: 71% of working mothers find it more difficult to manage their family vs. career (29%).
• Career & Motherhood Can Go Hand-in-Hand: A majority of working mothers (59%) say becoming a mother has not impacted their career path, while 15% say its actually had negative impact on their career.

So, what's the answer? It mommy bias real, fiction, or somewhere in between? It's hard to ignore the realities of maternal profiling when companies are hit with multi-million dollar verdicts. At the same time, it is only a small minority or working moms (15%) who report that motherhood had a negative impact on their careers. At the end of the day, maternal profiling is real, but simply may not be as big of a problem as the Kohl's case makes it seem. Yet, 49% of moms still believe their companies should do better at helping them achieve work/life balance.

The takeaway for employers is that regardless of whether maternal profiling is as prevalent and widespread as some claim, it is still illegal sex discrimination. Separate and apart from the legalities of mommy bias, promoting a strong work/life balance is becoming increasingly important in the recruiting and retention of quality employees. Purposing screening out parents (moms and dads) from hiring or promotions needlessly removes a significant portion of the population of the workforce from a company. After all, today's young go-getter is tomorrow parent. Mommy tracking employees will result in a revolving door of younger, less qualified employees. And, it's illegal.

Carnival of HR is available

The Career Encouragement Blog has posted this week's Carnival of HR. Please take a few minutes out of your day to peruse the best of the of the HR blogosphere.

Cat fight on aisle 6: court leaves open the possibility that a handbook can create a contract

In White v. Fabiniak, Wal-Mart fired Carla White for threatening to "slap the piss" out of a co-worker, Stephanie Jeppe. Prior to the termination, White had used Wal-Mart's Open Door Policy to complain to her supervisor that Jeppe had been threatening her.

White was an at-will employee of Wal-Mart. At the start of her employment, Wal-Mart provided her an employee handbook that contained, among other provisions, an Open Door Policy. That policy provided:

If you have an idea or a problem, you can talk to your supervisor about it without fear of retaliation. Problems may be resolved faster if you go to your immediate supervisor first. However, if you feel your supervisor is the source of the problem, or if the problem has not been addressed satisfactorily, you can go to any level of management in the Company. But remember, while the Open Door promises that you will be heard, it cannot promise that your request will be granted or that your opinion will prevail.

White claimed that the open door policy created an implied contract between her and Wal-Mart, and terminating for using the policy violated that contract. The court of appeals disagreed:

The policy provides an avenue an employee may use in the event he or she has a work related concern, idea, or grievance. Within the context of the policy, therefore, Wal-Mart admits it will not terminate or otherwise punish an employee for choosing to share his or her ideas or problems with management. Read plainly, this is neither an implied or express promise of continued employment. Rather, it is merely an assurance that an employee can utilize the policy without concern of unfair reprisals on behalf of management or the company at large. ...

[W]e hold the plain meaning of the open door policy assured an employee he or she would not be retaliated against for utilizing it as a means to air his or her grievances. This does not imply the policy guaranteed an employee continuous employment if, for example, he or she breached a separate policy set forth in the manual in the course of utilizing the open door policy. ...

Nothing in the open door policy states that an aggrieved employee who decides to use the policy may utilize or threaten to utilize vigilante tactics if a particular supervisor does not handle the grievance in a manner the employee demands. Quite the contrary, the policy provides that, while an employee will assuredly be heard, an employee's view or opinion regarding the resolution of a problem will not always prevail.

Appellant does not specifically allege Chuba refused to hear her complaint, nor did she provide any evidence that her termination was retaliatory in nature. Appellant acknowledges, and the record demonstrates, she was fired for threatening Jeppe in violation of the workplace violence policy. Nothing in the record indicates Wal-Mart acted inappropriately in terminating appellant on this basis.

This opinion, however, may not be as pro-employer as it seems. It does not say that the employee handbook cannot create a contract, but merely that it does not in this case because Wal-Mart terminated White because she violated its workplace violence policy. The court did not find that White had no legal claim, but that Wal-Mart had a good reason to fire her. Thus, this opinion leaves the door open to the possibility that an employee can make a breach of contract claim if the employer does not have good cause for the termination.

Although unclear from the opinion, it is safe to assume that the handbook contained an at-will disclosure, such as: "This handbook is not a contract, express or implied, and does not guarantee employment for any specific period of time. Although we hope that your employment relationship with us will be long term, you are at all times an at-will employee, which means that either you or the company may terminate this relationship at any time, for any reason, with or without cause or notice." If that is the case, I fail to see how any employee could complain that the handbook creates an implied contract that the employer can breach, even if the employer admitted it fired an employee for using a handbook provision such as the open door policy.

Unless handbook disclaimers are to be rendered meaningless, employees cannot be permitted to bring breach of contract claims based on an employer's failure to follow a policy in the handbook. The claim must be based on some other recognized legal right, such as statutory retaliation or some public policy separate and apart from the handbook language itself.