How Swift Response to Racial Slurs Defused a Discrimination Claim

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By Eric B. Meyer

You have an employee handbook, an anti-harassment policy, training, the whole nine yards.

But sometimes, notwithstanding your best efforts to create a positive, respectful workplace, you receive a complaint from an employee who claims to be the victim of harassment based on [insert protected class here].

All the measures you’ve already installed mean nothing unless you respond to the that complaint appropriately.

A target of discrimination

In Muhammad v. Caterpillar, Inc., the plaintiff encountered both racial and homophobic slurs — really bad ones.

However, each time he complained to management, the company responded. The Chicago-based Seventh U.S. Circuit Court of Appeals opinion cites several examples. Here are a few:

In the first incident, a co-worker called Muhammad a “black nigger.” Muhammad complained to human resources. After the complaint, that employee never made any further racial comments to Muhammad. A different coworker stated that he did not like Muhammad’s “black faggot ass,” and Muhammad reported the statement to his supervisor, Kipp Edwards, who brought the complaint to human resources. Muhammad had no subsequent problems with that employee.”

Not only slurs, but graffiti, too

Unfortunately, Mr. Muhammad not only dealt with slurs, but also terrible, hurtful graffiti. But, as graffiti went up and Mr. Muhammad complained, the company responded quickly:

Muhammad reported the graffiti to Edwards on August 11. Edwards contacted the shift supervisor, Brad Johnson, and the labor relations representative, Melissa Schwoerer, and he immediately contacted Nu-Air — a third-party provider of painting services — to have the graffiti painted over. Similar graffiti reappeared on August 14, and Muhammad spoke with Edwards and also discussed the matter with Johnson directly who was present at the shift meeting. That evening, Edwards discussed with Muhammad that he should follow the chain of command in submitting complaints and should inform Edwards and then Edwards would communicate the information to Johnson. Edwards had Nu-Air repaint the walls again after that complaint.

Around that time (though we cannot tell precisely when), Edwards addressed the graffiti problem further by discussing it with all of Muhammad’s co-workers at a shift meeting. When more graffiti appeared on August 30, Edwards once more had the walls repainted, and each person on Muhammad’s line was individually warned that anyone caught defacing the walls would be fired immediately. No more graffiti appeared.”

Fast and reasonable, the company responds

It was Caterpillar’s nimble response to each complaint from Mr. Muhammad that helped it prevail when Mr. Muhammad eventually asserted a hostile work environment claim. That’s not right, said the Seventh Circuit:

[A]nother more fundamental obstacle blocks Muhammad’s claim that Caterpillar is liable for sexual and racial harassment: Caterpillar reasonably responded to Muhammad’s complaints.. .. After Muhammad reported to Caterpillar his co-workers’ offensive comments and the company responded, only one of the co-workers made another similar remark. … As for the graffiti, Caterpillar responded quickly each time Muhammad reported it, and it soon stopped the problem permanently.”

In sum, Caterpillar took reasonable efforts to ensure that the harassment did not repeat itself. And even though Mr. Muhammad had to endure this opprobrious behavior multiple times, each time the company responded reasonably.

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In short, the response doesn’t have to be perfect; just reasonable.

Employer takeaways

So, when an employee comes to you with a complaint of harassment, start by taking it seriously. Then fully investigate it. (Are your ears burning, Roger Goodell?).

Consider using an outside investigator. (Now, I’m just twisting the knife). Then take reasonable action designed to end the harassment.

And even if, after your investigation, you conclude that there was no wrongdoing, remind all those involved about your anti-harassment policy.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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