With the recent news of Harvey Weinstein, Bill O’Reilly (not again), and now Mark Halperin (he’s this once overrated now disgraced journalist I didn’t watch) committing sex harassment and assault for decades, it’s sometimes hard to believe this is really 2017 and that we’ve had laws against this stuff since the sixties. You remember, LBJ? The Fourth Circuit Court of Appeals issued an opinion this week with another set of gross facts—this time about race harassment—but that presents a learning point for employers: how to exercise the duty of reasonable care to avoid workplace harassment—and the legal liability that comes with it. The case is John L. McKinney v. G4S Government Solutions Inc., case number 16-1498.
For employers, it’s important to know what it means to exercise reasonable care with harassment, because under certain circumstances, a company may be able to avoid liability for workplace harassment—race, sex, etc., if you take the correct steps in response to a complaint. It’s also the right thing to do. And this case is important for South Carolina employers, because the Fourth Circuit is the federal appellate jurisdiction that covers the Palmetto State.
The Harassment—A Noose and a Hood.
Mr. McKinney worked as a security officer at the Radford Army Ammunition Plant in Virginia. This is a munitions manufacturing installation that supplies propellant for artillery, air defense, missiles, and certain Naval weapons systems. Serious stuff. McKinney alleged that once in 2011, a janitor used the N-word in his presence and that in 2012, a fire chief told McKinney that the company had hired a “colored boy” as a firefighter. Mr. McKinney never reported these occurrences. Now here’s where it gets ugly. On May 23, 2013, McKinney saw a group of white supervisors laughing in a common area near his office, and Shawn Lewis, who was the company’s highest ranking supervisor, asked McKinney if he knew there was a noose hanging on a nail inside a small closed cabinet nearby. Basically, these guys were yucking it up and wondered what McKinney’s reaction would be. But, they were supervisors. Lewis showed McKinney the noose and, for some stupid reason or another, directed McKinney to get rid of it, over McKinney’s understandable objection. As McKinney was walking away with the noose, a co-worker walked by and said, “I know what to do with that. I can use that around my house.” The co-worker lived in a predominantly African-American neighborhood.
Later that day, McKinney walked into a supply room where he heard laughter and saw Lewis standing on a ladder holding a white sheet over another supervisor’s head so that it looked like a KKK hood. Apparently it was White Supremacist day at the munitions manufacturing plant. Wait, that doesn’t seem safe. I think we have a problem. (For the record, these guys denied Mr. MicKinney’s version.)
McKinney’s Complaints to His Employer.
Umm, well Mr. MicKinney didn’t actually complain to his employer, who had a published policy that prohibited racial discrimination and harassment, and which directed an employee to “immediately” report any such harassment to his “supervisor, a manager, or to the Corporate Human Resources Department. Instead, he complained to the highest ranking Army officer at the installation. Now, I was in the Army a long time ago. And they take discrimination and harassment very seriously. So, aside from my quibbles as an employment lawyer about where he should have lodged his complaints (hint-it’s called “human resources”—this will be important later), he probably knew that his employer stood a good chance of being in hot water with the Army over his situation. And he was right. His employer learned of his complaints, began an investigation, and promised Mr. McKinney he’d be free from any retaliation.
The Investigation and Remedial Action.
I won’t detail the whole investigation, but it was thorough. The company’s human relations officer came up from Florida, interviewed more than thirty people, took extensive notes, and expressed judgment calls about motive, credibility, and recommended outcomes. During the investigation, the company learned that Lewis, the supervisor who was implicated in both the noose and the KKK sheet incident, was also a really terrible manager. Go figure. Employee morale was really low. Lewis’s performance of the contract at the Plant was poor (he was the Project Manager), so independent of Mr. McKinney’s complaints, the general contractor at the Plant that had hired McKinney’s employer for its services instructed them to transition Lewis off the contract smoothly with a replacement. But when the GC learned that McKinney was filing an EEOC complaint based on the “noose incident” and that Lewis was implicated, the GC demanded that Lewis be removed from the position immediately, and he was terminated. Like I said, the Army takes this stuff very seriously, and those who have lucrative contracts don’t want to complicate their revenue streams. Curiously, the only remedial actions the case discusses other than firing Lewis (I am taking my facts from the district court opinion, that’s the trial court level) are that McKinney’s employer scheduled and conducted diversity training for all of its security supervisors before the end of the calendar year. Okay, this is not the topic of this blog post, but diversity and harassment really are not the same things. Deep sigh. Second deep sigh.
Allegations of Retaliation.
Quick Review: It’s unlawful to retaliate against an employee who complains of harassment or discrimination—but you knew that. There really wasn’t much there, there. McKinney claimed that he was excluded from meetings, was micromanaged, and had his car dented and tires slashed by an unknown individual. And there were some other minor complaints. He overheard one of his subordinates saying, “We need to get rid of his ass,” but McKinney never reported this. He also claimed that his new supervisor called him on consecutive days “all the time” after hours to ask insignificant questions, which he felt was harassing, although not “racially harassing.”
Employer Wins—the Duty of Reasonable Care.
Okay Employers, this is “bread and butter” time. This is what you need to know to avoid liability, to protect your employees, and generally to be good corporate citizens. In cases like this one where the harasser is the victim’s supervisor, the Faragher/Ellerth defense is available to an employer only if no tangible employment action is taken. If no tangible employment action is taken against the employee, then the employer may escape liability by establishing that:
- the employer exercised reasonable care to prevent and correct any harassing behavior, and
- the employee unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.
Great. So what does that mean, exactly? Well for one, in the Fourth Circuit, distribution of an anti-harassment policy provides ‘compelling proof’ that the company exercised reasonable care in preventing and promptly correcting” harassment. McKinney received a copy of the policy upon being hired in 2008 and was shown an anti-harassment video, and received another copy of a very similar policy in 2010. But you also have to take prompt, remedial action. An investigation took place within weeks of McKinney’s complaint and the primary harasser was removed from his position. Now I tell my clients that an investigation should start within days—not weeks—of a complaint. But then, Mr. McKinney didn’t actually complain to the company, did he? His failure deprived his employer of opportunities to address the harassment earlier. As the district court wrote:
If Title VII’s prohibitions against racial harassment are to be effective, employees must report improper behavior to company officials.
Also, the evidence showed that no racial harassment continued. Mr. MicKinney was since prompted to a better position, too.
Let’s Review the Basics:
- Publish a legally compliant workplace harassment policy;
- Train your supervisors and employees on the policy, particularly the complaint reporting procedure—annually;
- Investigate complaints promptly—within days, not weeks, if possible;
- Implement effective remedial measures, those that are reasonably calculated to ensure that the harassment does not recur;
- Protect the complaining party from retaliation—yes, tangible adverse employment actions, like significant changes in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits—but be careful about things like over-disciplining the employee too.
So, that’s the Duty of Reasonable Care. Easy peasy. Dust off those policies. Do some training. You’ll be glad you did. Something to think about is, what if Shawn Lewis, the supervisor, had been a good Project Manager? What if he was really important to the company’s success performing its contract? Because in a way, the employer got dealt an easy hand. Its GC insisted that Lewis be fired. Absent that demand, if you were the company president, would you have kept him? Do you believe you could have retained Lewis and still met your Duty of Reasonable Care? That’s one among many things that interests me about this case.
I hope Mr. McKinney is still doing well there and having a good career. I hope there aren’t anymore nooses or Ku Klux Klan mock ups. Let’s work and play well together, y’all. It’s the Law.