Labor & Employment Law

To establish affirmative defense to hostile environment claim employer must take prompt remedial action

To establish affirmative defense to hostile environment claim employer must take prompt remedial action
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Bailey v USF Holland, Inc., No. 07-5304 , ___F.3d ___ (6th Cir. May 16, 2008), demonstrates that if an employer seeks to establish an affirmative defense to a claim of hostile environment discrimination it must take prompt remedial action. This case demonstrates that even if the employer takes action, if it is not reasonably prompt, the employer can still be held responsible.

Two years after plaintiffs' started complaining to management about the offensive use of the word "boy," a new manager decided to conduct "sensitivity training". Never the less, the behavior continued for several months after the training. The employer then brought in an outside lawyer who conducted a three-day investigation and rather remarkably concluded that there was not a racially hostile environment at work. Therefore, the company refused to discipline anyone.

This case also involved certain graffiti and harassment, which continued. Eventually, the employer hired a handwriting expert and terminated the offending employee. The employee filed a union grievance and was reinstated. This employee stunningly said to his manager after he was reinstated that "he would not adhere to the policy and would continue to use the word 'boy' as he saw fit."

Finally, in 2006, 4 years after plaintiffs' first complaint and a year after they filed their lawsuit, the employer installed 25 security cameras, which finally ended the harassment.

After a bench trial, each of the two plaintiffs was awarded $350,000 in compensatory damages.

With respect to the affirmative defense, the court stated:

Defendant argues that the district court erred in rejecting its affirmative defense. We have held previously that an employer may avoid liability by demonstrating that (1) it exercised reasonable care to prevent and correct promptly any racially harassing behavior, and (2) plaintiffs unreasonably failed to take advantage of corrective opportunities. Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999).

The district court ruled that defendant did not exercise reasonable care, as discussed above, and that its corrective actions were not prompt. For example, defendant was able to eventually control the proliferation of ?boy? graffiti, but not until after the present lawsuit had been filed.

Because defendant was unable to establish the first prong of its affirmative defense, the district court did not need to analyze the second prong, although it did mention that plaintiffs reported the harassment to several supervisors and, thus, defendant would not be able to meet the second prong of the defense. We agree with the district court?s analysis and conclusion that defendant did not carry its burden regarding its affirmative defense.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on June 12, 2008 (boomark / email).