Yesterday we blogged that a hostile work environment can be created in any way, by anybody, or by any means, if the employer does not address an employee complaint that the workplace is hostile.
We reported on the settlement of a case where a large grocery chain agreed to pay $487,000 to settle an action where female employees “were sexually harassed by the same customer … almost daily, and often several times a day, and he would make lewd comments to employees and customers, in addition to grabbing employees, cornering them, touching their breasts, and pulling one employee onto his lap.” An EEOC lawyer said that “Employers are responsible for ensuring a harassment-free workplace for their employees, regardless if the harasser is a co-worker, manager or customer. There should be no tolerance for repeat offenders and serial harassers.”
A recent federal appeals court decision further illustrates and underscores this point – a case where the harasser was an incredibly racist and sexist independent contractor.
In that case, plaintiff began working as a receptionist and had to interact on a daily basis with an independent sales representative. Almost immediately he began to spout racist, sexist and other offensive epithets and comments to plaintiff and others within plaintiff’s hearing. Plaintiff took great offense and complained to her boss repeatedly, and became “so upset about the prospect of being forced to interact with [him] that she took a medical leave of absence … During this time she received treatment for depression and anxiety.” The company did nothing about her complaints.
The court quoted his reported comments as follows:
“[H]ey, who are these two black b* * **es[?]”
On one occasion, he showed her a photograph of a naked woman on his cell phone and remarked: “[T]his is what I left in my bed to come here today.”
He indicated that he could not go into an office, saying: “I’m just too f* * *ed up, don’t take offense, but I’m as f* * *ed up as a n* * * *r’s checkbook.”
He told his daughter when plaintiff was on the phone that “[T]hat’s the black b* * * * over at Marble Point.”
He used racial “slang” such as “Yo, b* * * * ” and “How’s my b* * * *es?” when talking to the female employees.
Remarkably, the lower court held that “in regard to the racial and sexual hostile work environment claims, [plaintiff] did not present sufficient evidence to create a genuine dispute of material fact on the issue of whether the harassment was objectively severe or pervasive,” and “even if the harassment was found to be objectively severe or pervasive enough to alter [plaintiff’s] work conditions, [the company] would still be entitled to summary judgment because [plaintiff] could not establish that liability should be imputed to [the company].” (The fact that the lower court is in North Carolina is possibly not without relevance).
The appeals court reversed and started, thankfully, by stating that “the word ‘n* * * *r’ is pure anathema to African–Americans” … as it should be to everyone. Moreover, as we have stated before, ‘[w]e cannot ignore … the habitual use of epithets here or view the conduct without an eye for its cumulative effect. Our precedent has made this point repeatedly.’ … Therefore, when viewing the circumstances as a whole, we find the use of the word ‘n* * * *r,’ coupled with the ongoing offensive racial talk, use of the term ‘black b* * * * ‘ on more than one occasion (once directed at a black employee), and sexual talk regarding black women, is sufficient evidence for a reasonable jury to find the race-based harassment was objectively severe or pervasive.”
As to the main issue of the “standard for analyzing an employer’s liability for third-party harassment under Title VII,” the court adopted “the reasoning we set forth for employer liability for co-worker harassment.“ It stated that “an employer cannot avoid Title VII liability for [third-party] harassment by adopting a ‘see no evil, hear no evil’ strategy’ … an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed “to take prompt remedial action reasonably calculated to end the harassment (emphasis added).” Freeman v. Dal-Tile Corp., 2014 WL 1678422 (4th Cir. April 29, 2014).
No more need be said in counseling employers that the status of the harasser is of no consequence to the creation of a hostile work environment.