In many employment harassment cases, the plaintiff files a lawsuit (pursuant to Title VII of the Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000e et seq.) claiming hostile environment-type harassment against the employer, rather than the perpetrator, seeking to impose vicarious liability on the employer for the harassment perpetrated by a co-worker or a supervisor. The employer may avoid vicarious liability by establishing that (a) the employer exercised reasonable care to prevent and correct promptly any unlawful harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257, 2270 (1998). The United States Court of Appeals for the Seventh Circuit recently affirmed summary judgments in favor of two employers because they were able to establish as a matter of law with the evidence obtained through discovery that they took prompt and effective remedial action to prevent the claimed hostile environment-type harassment from recurring.
In Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044 (7th Cir. 2000), the plaintiff, an African American, was told by a white co-worker to "get the (expletive) out of the office before I pop a cap in your ass." The co-worker then walked in a manner mocking African-American culture and asked the plaintiff if he had ever seen the movie entitled "Niggers with Hats." The plaintiff immediately notified his supervisor. The supervisor immediately reported the complaint to the news director. The news director then investigated the situation by talking to an eyewitness and the perpetrator. The next day, the plaintiff arrived at work to meet with the general manager regarding the complaint. The general manager, the news director and plaintiff’s supervisor met to discuss the results of the investigation as of that date. The day after, the general manager, plaintiff’s supervisor, the news director and an outside consultant met with the perpetrator to discuss his version of events. Afterward, the general manager informed the human resources department about the complaint. One week after the incident, CBS’s director of policy and administration investigated the complaint. After completing an investigation, the director of policy and administration informed the plaintiff that his allegation was serious, that the perpetrator’s obnoxious behavior would not be tolerated at CBS and told both the plaintiff and the perpetrator that the perpetrator would be punished for his conduct.
CBS imposed the following punishments: (1) placed a written warning in the perpetrator’s personnel record making clear that future misconduct would lead to more serious discipline; (2) imposed mandatory participation in a three day interpersonal skills workshop aimed at promoting better workplace relationships; and (3) the perpetrator was required to apologize to the plaintiff. In addition, CBS recirculated its anti-discrimination and fair employment policies to all employees. The perpetrator reluctantly sent a letter of apology. After complaining about attending the interpersonal skills workshop, the perpetrator was allowed to attend an alternative three day sensitivity seminar. Despite CBS’s response, the plaintiff refused to work because he felt it was unsafe. CBS told the plaintiff that his assignments could be given by telephone and that he and the perpetrator could be given staggered shifts to ensure that the plaintiff would not encounter the perpetrator at work. Nonetheless, the plaintiff failed to return to work and was placed on a paid medical leave of absence. After six months, CBS considered the plaintiff "voluntarily resigned" as was CBS’s policy after a six month medical leave of absence.
In affirming the District Court’s entry of summary judgment in favor of the employer, the Court of Appeals did not decide whether a hostile work environment existed because the question of whether CBS took prompt and effective remedial action was dispositive. The plaintiff on appeal argued that CBS’s response was insufficiently punitive given the severity of the perpetrator’s conduct. However, the Court of Appeals ruled that the question is not whether the punishment was proportionate to the perpetrator’s offense but whether CBS responded with appropriate remedial action reasonably likely under the circumstances to prevent the conduct from recurring. By punishing the perpetrator and promising to segregate the perpetrator from the plaintiff, CBS made it distinctly improbable that the perpetrator would further harass the plaintiff because the two men would have limited contact, if any, with each other at work. The Court of Appeals did note that if separating the perpetrator from the plaintiff would have disadvantaged the plaintiff, CBS’s response would have been inadequate. However, that was not the case.
In Hill v. American General Finance, Inc., 2000 WL 536670 (7th Cir. 5-4-2000), the Court of Appeals for the Seventh Circuit affirmed the entry of a summary judgment in favor of the employer on a sexual and racial harassment claim and a retaliation claim made against it by a black, female employee. The employee’s boss allegedly made highly offensive remarks towards the plaintiff of a sexual and racial nature by: (1) making comments such as "I like a woman with a big ass, like [plaintiff’s]," (2) asking the plaintiff if a doctor’s appointment was for her breasts or between her legs, (3) talking about the ways he liked sex, the frequency of sex and about pornographic movies; (4) once allegedly rubbing his pelvis against her buttocks and saying "Boy that feels good," (5) saying "Once you go black, you never go back," (6) "Don’t come into this office talking black, because this ain’t no Aunt Jemima office," and (7) that he was "Sick of black people getting food stamps and having all those black babies."
In moving for summary judgment, the employer admitted all of these allegations as true and did not contest that the boss’s conduct was hostile environment harassment. Instead, the employer argued that once it was notified of this misconduct, it reacted in a textbook example of what Title VII requires. First, the plaintiff wrote a letter to the company’s chief executive officer complaining of her boss’s behavior and his vulgar language, but did not identify herself on the letter. A day afterwards, she wrote another letter which she signed "a very worried and frightened employee." Again, she failed to identify herself. Nevertheless, the human resources department conducted an investigation two weeks later. The plaintiff was interviewed by the director of operations, but denied that she had written the letters. Further, no other employees confirmed any of her allegations, but did admit that they had conversations of a sexual nature in the office. Approximately one month after the first letter, the director of operations issued a warning to the plaintiff’s boss for allowing the conversations of a sexual nature to take place in the office. The director of operations also suggested that the plaintiff might be interested in an assistant manager position at a different office soon to be opened.
One month after that, the plaintiff sent a letter to the director of operations setting out each instance of harassment and this time signed her name to the letter. Two days later, the human resources attorney and outside counsel for the company investigated the allegations. They conducted a follow up investigation two weeks later. The company’s human resources attorney concluded that she should (1) issue a written warning to plaintiff’s boss, (2) provide him with additional training, (3) transfer and demote him, and (4) transfer the plaintiff to prevent retaliation from her coworkers. Plaintiff’s boss was then transferred to a different office with a $10,000 reduction in pay. He received a written warning for failing to cooperate with the investigation and for inappropriate conduct. The human resources attorney informed the plaintiff that she was being transferred to an office in St. Louis. The plaintiff resigned two months later. The plaintiff claimed that the transfer was a demotion because it was a high crime area. The plaintiff also claimed that the manager at the new office was openly hostile to her and recommended that she be fired for allegedly providing competitors with names of prospective loan applications.
In affirming the summary judgment, the Court of Appeals noted that the plaintiff did not notify the company of the harassment until three months after the initial instance of harassment. She admitted that she was not completely honest during the interview on the initial allegations of harassment. Moreover, there was no dispute that after the letter in which the plaintiff identified herself, the company took immediate corrective action. The company immediately investigated the perpetrator’s conduct. The plaintiff testified that the director of operations came to the office in response to her complaint and told her that if she had any problems she could call him. The human resources attorney and the outside counsel also conducted an investigation and as a result, concluded that both the perpetrator and the plaintiff should be transferred out of the office where the misconduct took place and the perpetrator’s salary was cut by $10,000. The Court of Appeals also took note of the fact that the company had a number of anti-discrimination and anti-harassment policies in place at the time of the events. A memorandum was subsequently sent to employees setting forth a complaint procedure which involved four basic steps. The first was to report to the immediate supervisor or manager. If that failed, or if the employee did not feel that it was a matter than could be discussed with the supervisor, the employee was allowed to discuss the matter with the appropriate field relations consultant, the associate director of employee relations and benefits, or the director of human resources and systems management. The third step was to complain to the fair employment practices compliance officer. A telephone number for complaints was provided. The fourth step was to complain to the personnel administration committee through the director of human resources and systems management. The Court of Appeals held that as a matter of law the company was entitled to summary judgment because while the perpetrator’s behavior as alleged was ignorant and loutish, once the company was notified of his behavior "it reacted with commendable alacrity and almost a textbook example of what is supposed to happen."
Finally, in Howse v. Northwestern Memorial Hospital, 2000 WL 764952 (N.D.Ill. 6-13-2000), the United States District Court for the Northern District of Illinois, Eastern Division, entered summary judgment in favor of the employer facing a hostile environment type racial discrimination claim and a retaliation claim because: (1) the employer responded promptly to the plaintiff’s complaint and timely instituted its grievance procedure; (2) the company scheduled a hearing two weeks after the plaintiff submitted his written grievance but the hearing was canceled at plaintiff’s request and plaintiff failed to reschedule it or file a new grievance; (3) nothing in the record established that the company’s response was anything but prompt and reasonably calculated to end the purported harassment and finally, (4) there was no evidence in the record suggesting that the company’s grievance procedure was ineffective or discriminatory.
While each of these cases is factually different, the lesson to be learned is that these employers took the type of action contemplated by Title VII which our jurisdiction has interpreted to warrant summary judgment in favor of the employer on hostile environment harassment claims. So, if an employer does not have an anti-discrimination policy in place, find legal counsel to draft one and distribute the policy to all employees. Finally, the employer should be advised to keep complete and accurate records of any action the employer takes in response to a harassment complaint.
Jeffrey A. Tullis is an associate of Broida and Farrow in Naperville. He graduated from Loyola University of Chicago, B.A., cum laude 1994 and The John Marshall Law School (J.D. 1997)