Cases which allege hostile work environment based upon racial harassment have been the subject of a number of our blogs recently, in which we have observed the use of the ever-present “N-word” and the image of a noose, or a real noose.
Now, the EEOC reports that a federal judge has granted a rare partial summary judgment to the EEOC, which sued a Utah construction company on behalf of three black employees who the Court found were subjected to an objectively hostile work environment.
The Court held that defendants’ conduct was "constitutionally offensive in any setting" and that this "is a rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct." Moreover, the Court held that the employer’s anti-harassment policy was "unreasonable as a matter of law" because it directed employees to report harassment to their harassing supervisor with no alternative means to bypass that supervisor.
What was this racially offensive conduct? Well, the “N-word” and the noose appear yet again.:
— the site superintendent referred to the employees as "n—-rs" or a variation of that word almost every time he spoke to them;
— the superintendent frequently told racial "jokes," such as, "why don’t ‘n—–s’ like trees? Because they are used to hanging from them."
— other employees also told racial "jokes," and several used the term "n—-r-rigging" while working there.
— during a meeting for all employees, the HR manager asked employees "not to n—-r-rig their jobs."
— one supervisor referred to rap music as a "n—-r jig," and told an employee that "there is a difference between n—-rs and blacks, Mexicans and spics."
As if echoing our blogs (maybe he reads them!) the EEOC General Counsel was quoted as saying that: "Unfortunately, as several recent EEOC cases such as EEOC v. AA Foundries Inc. (Civ. No. 5:11-cv-792 (W.D. Tex.)), involving the routine racially offensive treatment of African-American employees; EEOC v. WRS Compass (Civ. No. 09-cv-4272 (N.D. Ill.)), involving nooses and the use of the ‘N-word‘; and EEOC v. Scully (Civ. No. 11-8090 CAS (C.D. Cal.)), also involving the use of the ‘N-word’; demonstrate racial harassment is a 21st century workplace problem that our agency must continue to combat (emphasis added)."
One more time we caution employers: let the word out that racially offensive conduct or comments will not be tolerated; maintain a written zero-tolerance policy with appropriate reporting mechanisms and follow it (a bad or discriminatory policy is worse than no policy at all); and train all managers and employees.