Most of you know by now that employers need a few good policies on hand to deal with troublesome employee issues. Little things like dress codes, attendance policies, disciplinary procedures, and, oh yes, maybe a statement about anti-discrimination and harassment would be helpful as well. Once those are in place, you can get on with life and turn your attention to the really important things: like running your business and making some money. Right?
Not exactly. Just ask the folks at a Virginia waste company who were hit last month with reportedly the largest race discrimination verdict in Virginia´s history. In White v. BFI Waste Services[1], a jury told the company they owe two workers $2.6 million each because, essentially, the company didn´t follow its own policies.
Background
Two trash collectors for BFI Waste Services alleged, among other things, that their supervisors began harassing them in the mid-1990´s by means of racial slurs, epithets, and insults, creating a hostile work environment. According to the plaintiffs, their supervisors repeatedly called Mr. White and other black employees "boy, jigaboo, nigger, and porch monkey." One supervisor allegedly told the other plaintiff, Mr. Gaskins, whose wife is white, that he did not appreciate Gaskins "taking our white women." The African-American drivers asserted that they told management about the discriminatory activity between the time the harassment began and the time they filed their claims in 2002. During the period of the alleged harassment, other drivers reportedly had their own issues with management and ultimately succeeded in union organization. At some time prior to 2002, BFI performed an investigation of the racial harassment complaints and ultimately fired one of the accused supervisors. Even so, the plaintiffs' claim the harassment continued. All the while, the company had a discrimination and harassment policy in place and had distributed it to all employees, including the plaintiffs. Its policy prohibited discrimination based on any of the legally protected categories, and it provided means for reporting, investigations, and corrective action.
Bring in the Law
According to case law, in order to show a hostile work environment existed, the plaintiffs needed to demonstrate that BFI´s actions were:
- Unwelcome,
- Based on race, and
- Sufficiently severe and pervasive to alter the conditions of employment and create an abusive atmosphere. Spriggs v. Diamond Auto Glass, 242 F. 3d 179 (4th Cir. 2001).
The plaintiffs´ allegations of racial insults and epithets allowed the jury to find easily that the supervisors´ actions were unwelcome, based on race, and had created an abusive atmosphere.
It is important to note that neither of the plaintiffs claimed to have suffered physical threats from the supervisors; nor did either lose compensation, benefits, or his job. The courts have said it is not necessary to suffer a "tangible employment action" in order to prove the existence of a hostile work environment. Further, once a showing of hostile work environment is made, employers are generally presumed to be liable if the organizations´ supervisors created the environment. However, when no "tangible employment action" has been taken against an employee, the employer can raise an affirmative defense to try and avoid liability. In hostile work environment cases, an employer must show the following to defeat the presumption of liability:
- The employer exercised reasonable care to prevent and correct promptly any harassing behavior; and
- The plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise
The court in this particular case had previously decided that the "distribution by an employer of an anti-harassment policy provides ´compelling proof that the [employer] exercised reasonable care in preventing and promptly correcting harassment.´" Barrett v. Applied Radiant Energy Corp., 240 f.3d 262, 266 (4th Cir. 2001). Therefore, BFI likely felt quite confident with its affirmative defense because it had created thorough polices that were adequately distributed to its employees. Further, it had conducted an investigation into the complaints, resulting in the termination of a supervisor.
Let us recap to this point:
1. Plaintiffs file suit for race discrimination based on a hostile work environment;
2. Plaintiffs testify their supervisors repeatedly insulted them with derogatory remarks, but have no showing of a tangible employment action;
3. Without a tangible employment action, BFI has a right to raise the affirmative defense and potentially escape liability;
4. BFI had distributed its anti-harassment policy to all employees, including the plaintiffs, thus providing "compelling proof" of reasonable care under the court´s analysis above.
So, why the huge verdict?
In many, many scenarios, this would be the end of the case. The organization could win summary judgment at this point because, presumably, it did all it had to do, it is entitled to the affirmative defense, and it could avoid liability. In fact, that is exactly what the lower court held in this case. BFI was originally granted summary judgment on these claims, in large part because it had the policy in place. However, once the appellate court took a look at the facts and recent law, it decided the issue really boiled down to whether the employer effectively enforced its policies,and thus completely satisfied the first prong of the affirmative defense.
The question thus became: Did the company exercise reasonable care to prevent and promptly correct any harassing behavior? According to Mr. White´s testimony, he complained to management on several occasions. He claimed the supervisors repeatedly denied making the derogatory remarks, and therefore, management did nothing. If those allegations are true, the Fourth Circuit Court of Appeals stated that a jury could conclude BFI unreasonably failed to correct the offensive behavior by failing to enforce its own policy. Evidently, that is exactly what the jury concluded - in a big, big way.
What does this mean for employers?
This means it is not enough to have necessary policies in place. Nor is it enough to make sure all employees receive a copy. It means that employers must:
- Follow their own policies, fully and consistently;
- Take all complaints seriously;
- Conduct a full, fair and impartial investigation of the complainant´s claims;
- Consider bringing in a neutral party to conduct the investigation in an effort to avoid any actual or perceived bias;
- Resist the temptation to end an investigation without a conclusion, merely because the statements of the complainant and the accused are contradictory;
- Take appropriate corrective action designed to end the harassment, based on the objective findings made during the investigation.
Taking these steps places an employer in a much better position to raise the affirmative defense and avoid liability altogether. Otherwise, an employer might find its shelves full of great policies, but its coffers several millions short.
About the Author
Wendy Hendricks Sicola is a consultant with Employment Practices Solutions, offering a myriad of employee relations services in Houston and the surrounding areas. Wendy has over eleven years experience counseling management on issues ranging from harassment and discrimination to union avoidance to policy planning and implementation. She received her undergraduate degree from Texas A&M University and her law degree from the University of Houston.
About EPS:
Employment Practices Solutions, Inc., www.epexperts.com, is based in the Dallas/Fort Worth Metroplex with offices in Atlanta, Boston/New England, Colorado Springs, Denver, Houston, San Francisco, New Jersey/Tri-State Area, Philadelphia and Washington, D.C. EPS provides organizations with assistance in Spanish and English in preventing and minimizing workplace employment claims and lawsuits by providing the highest quality human resources consulting available.
