On August 23, 2012, in May v. Chysler Group, LLC, Case No. 11-3000, the Seventh Circuit Court of Appeals upheld awards of $300,000 in compensatory damages and $3.5 million in punitive damages stemming from an employer’s insufficient actions to address Mr. May’s allegations of a hostile work environment based on race, religion, and national origin. As set forth by the court, to prevail in a hostile work environment claim, Mr. May must demonstrate that (1) he was subjected to unwelcome conduct based on his race, religion, or national origin, (2) it was sufficiently “severe and pervasive” to create a hostile or abusive work environment, and (3) there was a basis for employer liability. The court noted that Mr. May, a Cuban Jewish pipefitter, was subjected to 70 incidents of hostility over more than two years that included repeated punctures of the tires on his car and bike, derogatory graffiti in the company elevator, and written death threats in his tool among a number of other such incidents. While stating that an employer is not required to know exactly how to stop the harassing conduct at the time it is occurring, it must demonstrate that it took steps to put an end to the conduct and, when initial steps proved insufficient, it must demonstrate that it ramped up its efforts to stop the harassing conduct. To that end, the court observed that there was “scant” evidence that the company engaged in remedial efforts during this time period, such as possibly installing a camera near Mr. May’s tool chest or interviewing suspected employees. The court stated that the employer’s “response was shockingly thin as measured against the gravity of May’s harassment.” As a result, the court upheld the significant compensatory and punitive damage awards.

By contrast, the First Circuit Court of Appeals denied a race-based hostile work environment claim in Espinal v. National Grid NE Holdings, LLC, ___ F.3d ___, Case No. 11-1682 (1st Cir. Aug. 23, 2012). The court stated that, to impose liability on an employer in a hostile work environment claim, the plaintiff must demonstrate: (1) his co-workers’ harassment was sufficiently “severe or pervasive”; and (2) despite having notice of the harassment, the employer failed to take “prompt and appropriate remedial action.” In denying Mr. Espinal’s claim, the court held it was “clear” that the employer “took reasonable steps to address the alleged co-workers harassment based on the limited information Espinal was willing to provide.” Specifically, the court found:

The November 2006 incident occurred off-site and after company hours, and there were no National manager in attendance. Espinal’s direct supervisor only learned of the ‘rough night’ through Plaintiff’s co-workers, and he met with Plaintiff immediately after he learned of it. Plaintiff refused to disclose any details of the incident. Espinal’s direct supervisor then contacted his superiors, who scheduled and held a meeting at which two National managers, two union officials, and plaintiff were in attendance. This meeting ended when Plaintiff walked out, after refusing to disclose the names of his harassers. At the meeting following the December 2006 vandalism, a National manager of industrial relations provided Espinal with his personal cell phone number in case any other incidents occurred. Espinal never called, reported any additional incidents, or disclosed the names of any responsible parties. He also declined to meet with National following the filing of his harassment charge in January 2007.

Nonetheless, National managers did respond to plaintiff’s allegations. They met with union members and officials to discuss these incidents and reiterate National’s zero tolerance policy. National warned that any employee caught engaging in harassment would be terminated. The meeting was a prompt and appropriate response.

Thus, in both cases discussed in this paper, the employer held a meeting—National’s meeting constituted “prompt and appropriate” action because (1) Mr. Espinal would not divulge the names anyone allegedly harassing him, and (2) at a meeting, the employer emphasized its “zero tolerance” policy regarding harassment in the workplace and it notified employees that any person caught harassing Mr. Espinal would be terminated. On the other hand, in the meeting held by Chrysler’s management, there was no notification of a “zero tolerance” policy against harassment in the workplace, nor did the company lay out specific disciplinary steps it would take if an employee was caught harassing another employee. Moreover, unlike Mr. Espinal who refused to provide the names of alleged harassers, Mr. May did provide names of alleged harassers to Chrysler, but the employer never followed-up to interview the named individuals. Finally, National’s manager of industrial relations provided Mr. Espinal with his personal cell number in case any other incidents occurred. The management at Chrysler, on the other hand, did not present evidence of similar conduct with regard to Mr. May.

Seena Foster, award winning author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.