Prompt Investigations are Required for Title VII Complaints – Not a “Perfect” Response - American Society of Employers - Anthony Kaylin

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Prompt Investigations are Required for Title VII Complaints – Not a “Perfect” Response

employment discriminationIf a complaint about race or sex discrimination arises, the person bringing the complaint will generally have what they think is the perfect solution. However, courts are not looking as much at the solution as they are at the steps taken to get to a solution.  Prompt investigation is an important defense to discrimination claims.

In Burns v. Berry, No. 21-5359 (6th Circuit Court of Appeals, 2/7/22), Burns was employed as a maintenance technician by Berry Global, Inc. ("Berry"), where he was the victim of four instances of racial harassment. Between August 7 and August 24, 2018, Burns found an offensive note, a noose, and a written threat in his locker. Burns was deeply troubled by these instances and reported them. Berry launched an inconclusive investigation that failed to identify the harasser. In January 2019, Burns discovered another noose and resigned soon after this incident.

After each incident, Berry took various actions:  reviewed security footage; took employee interviews; warned employees against engaging in harassment; directed supervisors to monitor for offensive displays; adjusted the surveillance cameras; and moved the lockers to enable better surveillance.   Berry tried an unsuccessful attempt to set up an employee group to address morale issues. Berry also had a “Code of Respect and Non-harassment” training. The employee was provided access to the Employee Assistance Program for counseling services, given time off, and offered a transfer to another shift. Unfortunately, no one was able to identify the perpetrator, and the harassment continued.  

Burns sued the employer for asserting claims for racial discrimination, hostile work environment, employment retaliation, and constructive discharge.  Burns claimed that the actions were not significant or impactful to stop the harassment.  For example, Burns disputed whether racial harassment was ever discussed at the training. Burns signed the roster but did not recall a discussion on discrimination or non-harassment. Burns recalls a five-minute discussion during the training in which a PowerPoint slide was "flashed" with the offensive note on it and the instructor, instead of discussing the note itself, only "spoke on defacing company property and how it would not be tolerated."

In addition, even though the facility was considered a small facility in which everyone would seem to know what is going on, when HR conducted their interviews, they failed to yield any leads as to the harasser's identity.   This is important because depending on the identity of the harasser, different levels of liability would attach.  For example, if it is a supervisor, strict liability would attach.  If a coworker, the employer is liable only if it was negligent in controlling working conditions

Although Burns claimed it was a supervisor from the day shift (Burns worked night shift), the court ruled that even if true, the supervisor had no control over Burns so the coworker standard would apply.  Yet, no one was identified as the perpetrator of the harassment.  Therefore, per the court, to hold an employer liable for the harassing conduct of an employee's coworker, the employee must show the employer's response to the harassment manifested indifference or unreasonableness in light of the facts the employer knew or should have known.

In this situation, the court stated that Berry’s response was adequate because it took prompt action reasonably directed at determining the source of the harassment by listening to Burns, conducting a timely investigation, interviewing those potentially responsible, and following up with him frequently. Other factors that made Berry's response adequate include giving Burns two days off after the first noose was discovered, warning shift employees that Berry did not tolerate harassment, completing pre- and post-shift locker room walkthroughs, adjusting security cameras, making plans to relocate lockers, suspending a potential suspect, and offering Burns a transition to the day shift.

Although acknowledging what Burns suffered was egregious, the 6th Circuit ruled that Title VII requires a reasonably prompt corrective response, not a perfect response.  Burns lost.  Therefore, HR should remember when a complaint arises, it needs to investigate and cover the basis to determine who and what happened.  An employer can still be held liable if the investigation is not performed reasonably or haphazardly.  Any complaints of discrimination need to be taken seriously and responded to in an appropriate manner.

 

Source: Shawe Rosenthal LLP 2/28/22

 

 

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