Two nooses hanging near a loading dock and racist graffiti on a company truck designed to be seen by the company’s African-American employees will almost certainly lead to an expensive racial harassment lawsuit against a business, but the federal Fifth Circuit Court of Appeals recently sided with an employer who promptly took five comprehensive steps in response to this reprehensible conduct.
In its June 2018 opinion, the Court held that YRC, the employer, responded appropriately to these incidents at its Irving, Texas facility. The opinion gives all employers helpful guidance on how to combat harassment in the workplace. Tolliver v. YRC, Inc. (5th Cir. 2018).
It is important to note that the Court acknowledged that the racist actions were “morally unacceptable” and “reprehensible. But the plaintiffs didn’t allege that the acts were directed specifically toward them and “for the most part, learned about the acts secondhand”. So, the Fifth Circuit did not find that this conduct was sufficiently severe or pervasive enough to change the terms or conditions of employment as to these particular employees, meaning that their personal racial harassment claims weren’t strong to begin with.
But what really mattered to the Court is that the employer took prompt remedial action to protect all employees after these horrifying incidents occurred. The steps YRC followed offer guidance for all employers facing any kind of harassment situation, whether involving racial harassment, sexual harassment, ethnic harassment, etc.
Let’s call these the Five Steps to Responding Well to a Harassment Claim:
- Prompt, thorough investigation: YRC assigned the company compliance manager to launch an investigation on the same day that the first noose was discovered. Six additional human resources employees assisted with the investigation. Following the discovery of the second noose, the scope of the investigation was widened. In total, more than 450 employees were interviewed, and more than 245 hours of videotape surveillance were reviewed in the course of the two-month investigation. This may seem like overkill to some companies, but this investigation clearly showed the company’s commitment to rectifying the illegal harassment in the workplace.
- Make your employees safe: The company hired additional security guards, installed video cameras, and removed and prohibited all rope in the facility. Making the complaining victim and any others affected by harassment safe is a top and immediate priority when harassment is alleged. If the alleged harasser is known and is one of your employees, he/she may need to be put on leave of absence until the investigation can be completed. Ask your harassed employee what else reasonably needs to be done to make him/her feel safe at work and then follow up on those requests.
- Incentivize truth: The company offered a $25,000 reward for information leading to the identification of the perpetrator. This is not required in every case, but again, an employer who demonstrates that it takes a harassment claim seriously, whether it is racial, sexual, or any other kind of illegal harassment, is more likely to successfully defend a later lawsuit. As to the amount, $25,000 is a very small price to pay when a company is faced with the cost of hiring lawyers to defend a harassment case, followed by the likelihood of a pricey settlement or verdict payout.
- Handle the public relations well: The company did not try to sweep these allegations under the rug. It mailed letters to every employee concerning the incidents and the company’s response. The letter came from a Senior Vice-President, indicating that the highest echelons of the company took this matter seriously. Neither the district court’s nor the Fifth Circuit’s opinions indicated how public relations were handled with customers, vendors and the public, but wise companies often hire PR firms to competently confirm to all parties the company’s commitment to doing the right thing.
- Retrain and remind: YRC retrained everyone on its written discrimination and harassment policies and then reminded employees every week on every shift of their responsibilities to prevent and report harassment. Smart businesses know that annual harassment training (at least 2 hours long) should be provided to every employee, followed by regular reminders to all staff of the company’s high expectations of professional behavior.
These are not the only steps that a company may need to take. Usually, prompt, effective remedial action to stop the harassment and punish the perpetrator(s) would be on this list. However, even after its comprehensive investigation, YRC never identified the harasser. But as the federal district court judge, Sam Cummings, pointed out in his order granting summary judgment, “it is hard to imagine what else YRC could have done in response” to the racial harassment incidents. Therefore, the lack of remedial action didn’t hurt the company because the other steps it took were so thorough.
The law doesn’t expect employers to guarantee that an employee will never experience harassment in the workplace or that the harasser will be caught and penalized. The business will be judged publicly and in court on how well it promptly responds and the steps it takes as soon as management becomes aware that a hostile work environment incident has occurred.