1st Circuit Rules Employer Took Adequate Steps to Stop Harassment

On March 21, 2011, the First Circuit provided useful guidance for employers responding to employee harassment allegations. Affirming a lower court decision, the First Circuit ruled that (1) employers have wide discretion in determining appropriate discipline in response to an initial complaint of harassment, and (2) an employer cannot be held liable for coworker harassment about which it did not know. Wilson v. Moulison North Corp.

Background

The Players
The plaintiff, Arthur Ray Wilson, an African-American male, worked for Moulison North Corporation, a Maine-based company that installs and repairs airport runway lights. Ken Moulison is its owner and chief executive. Wilson worked alongside three men whose conduct was the subject of the lawsuit: William Stineford, Dale Small, and Ryan Polley. Polley functioned as the lead worker, giving the others their assignments when the team’s supervisor was elsewhere.

Initial Racial Harassment
Two of Wilson’s coworkers began spewing racial epithets at him shortly after his employment commenced, referring to him as “Aunt Jemima,” “nigger,” and “lips.” Wilson reported this conduct to the lead worker, Polley, who told Wilson’s coworkers to stop the offensive language, and who assigned the men to work in different areas. However, the harassment continued.

The Company’s Response
The plaintiff reported the harassment to the company’s CEO, Ken Moulison. Moulison investigated, confirmed the plaintiff’s account, and, according to the court, took the following actions:
• “berated” the offending employees and informed them that they were “working with a foot out the door;”
• told the men that they would be fired if any further incidents of harassment occurred;
• apologized to the plaintiff for his co-workers’ offensive conduct;
• confirmed with the plaintiff that any further harassment would result in the coworkers’ termination; and,
• encouraged the plaintiff to report any further harassment to him without delay.

Subsequent Harassment
Despite the CEO’s warning, the abuse continued, and Wilson’s relationship with other coworkers soured: one coworker slapped Wilson with a live electrical wire and another poured dirt, gas and oil into his water bottle. Wilson complained to Polley, who took no corrective action. Wilson never reported the conduct to the CEO, or to any other supervisor at the company. Several months after the abusive conduct began, Wilson went on leave after hurting his back. He did not return to work, and sued the company for tolerating a racially hostile environment, in violation of Title VII of the Civil Rights Act of 1964.

Rulings
To establish a hostile work environment created by a coworker, a plaintiff must show that “the employer knew or should have known about the harassment yet failed to take prompt and appropriate remedial action.” Wilson made two arguments in support of his hostile environment claim. First, he alleged that his former employer imposed an “inadequate, slap-on-the-wrist discipline” of the offending coworkers. Second, Wilson argued that, by reporting to Polley, he had put the company on notice that the abuse was continuing.

Initial Harassment
The First Circuit ruled that the company's response was both prompt and appropriate, and that Title VII does not invariably require an employer to terminate or to suspend an employee who harasses a coworker. Indeed, the court ruled that “a reasoned application of progressive discipline will ordinarily constitute an appropriate response to most instances of employee misconduct.”. While emphasizing the latitude given to employers to select how to impose employee discipline, the court also considered the following facts in determining that the company responded appropriately:
• the offending employees were not “repeat offenders”;
• racial discrimination was not a long-standing problem at the company;
• the company did not have a history of inconsistently disciplining employees;
• Moulison’s discipline of the offending employees conformed to the company’s anti-harassment policy; and,
• Moulison’s reprimand of the offending employees had “teeth”; that is, Moulison demanded that the offending conduct stop and threatened immediate termination if it did not.

Subsequent Harassment
Wilson next argued that his subsequent complaints to Polley, the work leader, put the company on notice that the harassment was continuing. The court considered whether Polley was a supervisor who, under Title VII, was required to take remedial action to stop harassment. The court ruled that Polley did not have authority to affect the terms and condition of his colleagues’ employment; that is, he did not have authority to hire, fire, demote, promote, transfer, or discipline them. Absent this authority, Polley was not a “supervisor” whose knowledge was said to be imputed to the employer.

In sum, the court ruled that despite the horrific nature of the conduct directed at Wilson, he had not put the company on notice of the renewed harassment, and thus, the company was not liable under Title VII.

Take-Aways

• Adopt an anti-harassment policy that, at a minimum, describes (1) the prohibited conduct; (2) what an employee should do who feels offended; and (3) the types of discipline the company could impose. Note that Massachusetts requires all employers with 6 or more employees to have a sexual harassment policy. Click here to access the Massachusetts Commission Against Discrimination’s sample policy;
• Train your employees. While it is a “best practice” to provide workplace harassment training for all employees, it is essential that you train supervisors how to respond to allegations of harassment;
• Understand that both Title VII and its Massachusetts counterpart, G.L. c. 151B, impose strict liability when a supervisor harasses a subordinate (unlike the situation in Wilson);
• Discipline an employee if an investigation reveals that he or she engaged in harassing conduct. While courts are reluctant to dictate the type of discipline an employer imposes, they will not tolerate an employer’s willful indifference;
• Treat like offenses (and offenders) alike;
• Follow your anti-harassment policy. The Wilson court emphasized that the CEO’s discipline of the offending employees conformed to the company’s anti-harassment policy;
• Put “teeth” into your discipline. Warn offending employees that further inappropriate conduct will result in more severe discipline;
• Follow up with the offended party. Although the employer in this case did not lose the lawsuit, it spent years in litigation. If you learn of harassment, follow up with the aggrieved employee to ensure that the harassment has ceased.
• Document your conversations with the offended and the offender. I recommend that employers send separate emails to the offender and offended summarizing the conversation concerning the harassment allegations. The email should restate the allegations, remind the employee that the company does not tolerate harassment or retaliation, encourage the offended employee to come forward if the conduct repeats, and remind the offender that further inappropriate conduct will result in more severe discipline or termination.

For more information about conducting employee harassment trainings, please contact Allyson Kurker.