As we blogged about here, the EEOC stated in its Draft Strategic Enforcement Plan that it is increasingly focused on preventing and, when necessary, litigating workplace harassment allegations. This week the EEOC’s caution came to fruition when the Commission filed a motion for partial summary judgment on allegations of racial harassment in EEOC v. Holmes & Holmes Industrial, Inc., No. 10-CV-955 (DAK) (D. Utah Oct. 10, 2012). The EEOC’s motion is the Commissions first pulse of the fiscal year relating to its regenerated focus on harassment litigation.
In EEOC v. Holmes & Holmes, the Commission alleges that the Defendant subjected its African-American employees to a hostile work environment. In a lengthy opinion addressing the EEOC’s motion, Judge Dale A. Kimball devoted over 11 pages to the facts surrounding the EEOC’s allegations that the Plaintiffs endured near-constant racial harassment. Despite a manager’s repeated use of the word “nigger” in reference to African-American employees, the Defendant argued that the EEOC’s motion for summary judgment should be denied because the EEOC did not prove the essential elements to prevail on a hostile work environment claim. Judge Kimball agreed with the Defendant and denied the EEOC’s motion. Judge Kimball’s order, however, did not resolve the entire case — if the parties do not settle the lawsuit, the Defendant will face trial on the EEOC’s race-based allegations.
The EEOC alleged that a group of African-American employees – James Buie, Antonio Bratcher, and Joby Bratcher – were subjected to racial harassment nearly every work-day for over two years. Id. at 3. Specifically, the EEOC alleged that the Bratchers and Buies’ manager repeatedly made racial “jokes” and used racial epithets. Id. at 7. Their manager addressed the Bratchers and Buie with the word “nigger” almost daily. Id. at 14. Evidence also established that in addition to verbal harassment, the portable toilets at the Defendant’s company were covered in racist graffiti. Id. at 7. One supervisory staff member described the graffiti as referring to “anyone of any race” and including “everything you can imagine and probably things you can’t imagine.” Id.
In 2006, Antonio Bratcher handed his supervisor a written complaint about the continual racial harassment. Id. at 5. The Defendant did not investigate Bratcher’s report or take any disciplinary action. Id. One year later, Joby Bratcher complained to his boss, Ron Holmes, about the job assignments that he received and the way his manager treated him. Id. at 8. Holmes allegedly told the manager to stop the conduct and to apologize to Bratcher. Id. at 24. The alleged hostile work environment continued, and the Bratchers also complained to their co-workers about the racial harassment on numerous occasions. Id. at 8-9. In 2008, the Bratchers again reported the harassment to Ron and Mike Holmes. Id. at 9. That same day, the Defendant terminated the Bratchers. Id. On behalf of the Bratchers and Buie, and similarly aggrieved employees, the EEOC filed a lawsuit in the U.S. District Court for the District of Utah. The EEOC’s Complaint asserted that the Defendant’s created and condoned a racially hostile work environment and then fired its employees in retaliation for complaining about the racial harassment. Subsequently, the EEOC moved for partial summary judgment on the issue of whether the Defendant subjected Buie and the Bratchers to a hostile work environment. Id. at 12.
The Court’s Ruling
To prevail on a hostile work environment claim, the EEOC must prove that the work environment was both objectively and subjectively hostile. The Court considered the two prongs in turn. As to the objective element, the Court held that no reasonable jury could conclude that the Bratchers’ and Buie’s work environment “was not permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of [their] employment and create an abusive working environment.” Id. at 17 (internal citations omitted). Thus, the EEOC passed the hurdle of establishing that the discrimination was objectively hostile. The EEOC’s motion therefore hinged on its ability to prove that the Bratchers and Buie subjectively perceived their work environment as hostile or abusive. Id. at 18. To that end, the Defendant argued that the Bratchers and Buie were not bothered by their manager’s racist conduct because they were “all friends[.]” Id. at 21. The Court noted that a few witnesses testified that they did not believe that the Bratchers and Buie were offended by the racist conduct. Despite the “significant evidence that the Bratchers and Buie were offended by [their manager’s] conduct,” the Court stated that “there [was] also some limited evidence that they were not.” Id. at 21-22. As all it takes to defeat a motion for summary judgment is a material question of fact, and because a question remained as to whether the Bratchers and Buie were offended by their manager’s conduct, the Court denied the EEOC’s motion for summary judgment.
The Defendant’s Liability
In attempt to reach the Defendant’s “deep pockets,” the EEOC set forth two avenues to hold the Defendant liable for the alleged racially hostile work environment. First, the EEOC argued that the Defendant is liable for “negligence in tolerating and/or condoning a racially hostile environment because the Bratchers and Buie complained at least eleven different times and no appropriate action was ever taken.” Id. at 22. To hold the Defendant liable under a negligence theory, the EEOC needed to prove that the Defendant knew or should have known about its employees’ conduct and failed to respond in an appropriate manner. Id. The Court reasoned that the numerous times the employees complained about the harassment was clearly enough evidence to “demonstrate actual or constructive notice of the racially hostile environment.” Id. The Court concluded that whether the Defendants responded in a reasonable manner, however, remained a question of fact for the jury to determine. Thus, the Defendant escaped liability – for now – under the EEOC’s negligence theory.
The EEOC covered all of its bases and also argued that it could hold the Defendant responsible for the alleged hostile work environment under a vicarious liability theory. Under vicarious liability, an employer may be held liable for an actionable hostile environment created by a supervisor with immediate authority over the employee. The Court considered whether the Defendant could establish the two elements necessary to prevail in asserting an affirmative defense – that it exercised reasonable care to prevent and correct promptly any racially harassing behavior, and that the employees unreasonably failed to take advantage of any preventative or corrective opportunities. Id. The Court held that the Defendant did not exercise reasonable care to prevent harassment because its policy on harassment merely stated that someone who feels that they are harassed should “immediately notify his/her supervisor.” Id. at 26-27. The Court reasoned that the defect in the Defendant’s policy was that it did not provide an avenue for employees to make a complaint about a harassing supervisor. Furthermore, because the Bratchers and Buie complained about the race harassment on numerous occasions, the Defendant could not establish that they failed to take advantage of corrective opportunities. Therefore, the Court held that the EEOC could hold the Defendant vicariously liable for the alleged hostile work environment.
Implications For Employers
Although the Defendant in EEOC v. Holmes & Holmes escaped the EEOC’s motion for partial summary judgment, the EEOC emerged from the Court’s ruling with leverage over the Defendant because if a jury finds that there was a hostile work environment, the EEOC can hold the Defendant liable. Thus, even though majority of the ruling in this case focused on the EEOC’s hostile work environment allegations, the existence of such claims would have had little impact on the Defendant if the EEOC could not establish that the Defendant was negligent or vicariously liable for its employee’s actions.
This case should be a reminder to employers that when employees complain about workplace harassment, the employer is well-served if it takes prompt action. Implementing a policy that requires an investigation of reported workplace harassment or discrimination can aid in avoiding employer liability, and also work toward the goal of discrimination-free workplaces. Additionally, the Defendant may have avoided vicarious liability for its employees actions if it put in place a clear, comprehensive policy that listed numerous people to which its employees could report alleged harassment.
Readers can also find this post on our Workplace Class Action blog here.