Labor & Employment Law Daily Disciplinary action stopped coworker’s racial harassment, doomed hostile work environment claim
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Thursday, April 23, 2020

Disciplinary action stopped coworker’s racial harassment, doomed hostile work environment claim

By Marjorie Johnson, J.D.

The employee believed that a final warning was inadequate and that her coworker should have been fired. But the employer only had to show that it took action reasonably calculated to stop the harassment.

An African-American employee failed to convince the Fourth Circuit to reinstate her Title VII claim asserting that she was subjected to a hostile work environment after a Caucasian coworker made a “racist and sexually charged joke” by using the N-word to compare Brazil nuts to a black woman’s breasts. The district court properly determined that the employee failed to plausibly allege that the coworker’s harassment was imputable to the employer since the harassment stopped after the company disciplined the coworker by giving her a final warning. It was irrelevant whether the employer could have done more, whether the harassment was sufficiently severe or pervasive, or that other workers who used the N-word had been terminated (Bazemore v. Best Buy, April 21, 2020, Quattlebaum, A.).

Racist, sexually charged joke. The employee worked as a wireless sales consultant at a Best Buy store, and her lawsuit stemmed from an incident in which a Caucasian appliance-sales representative made a “racist and sexually charged joke” to a small group of coworkers. While eating mixed nuts, the coworker—who was purportedly “best friends” with the store’s general manager—identified a Brazil nut and asked the group, “Hey, do you know what these were called back in the day?” and “Do you promise not to call HR on me?” She then looked directly at the plaintiff—the only black woman in the group—and said laughingly, “N[****r] T[*]ts!” After everyone else “was frozen for a few seconds” the employee broke the silence by saying, “Okay” and walked away.

HR complaint. The employee reported the incident to HR the next day. Three days after that, a HR rep called to inform her that she was handling the matter. Two weeks later, the HR rep left her a voicemail stating that the matter had been resolved and to contact her with any further questions. Believing that nothing at work had changed and that management had not given the incident “any real attention,” she attempted to contact the HR rep to find out how the matter had been resolved but her calls were not returned.

Humiliated. The employee claimed that the atmosphere in the store remained tense and she avoided being alone with either the coworker or the store’s general manager. Perceiving the racist remark as having been directed at her and humiliating, she felt coworkers looking at her breasts. In particular, the joke reminded her of the days of slavery, when black women would be publicly scrutinized before being sold.

Harasser gets final warning. She filed an EEOC charge alleging that she had been harassed based on her race and sex and that Best Buy failed to take corrective action to resolve the incident. In response, the company asserted that it promptly investigated the incident and gave the coworker, who admitted making the offensive statement, a “final written warning.”

The employee subsequently brought this pro se Title VII action asserting she was subjected to a hostile work environment based on her race and gender, which the district court dismissed on the grounds that she failed to assert any facts that would impute the coworker’s conduct to the employer. In particular, she indicated that the harassment ceased after the coworker was promptly disciplined.

No failure to stop harassment. At issue was whether the employee sufficiently alleged that the coworker’s harassment was imputable to Best Buy. To do so, she needed to assert that it knew, or should have known, about the harassment and failed to take action that was reasonably calculated to end it. But while she alleged that the company knew of the coworker’s conduct by virtue of her complaint to HR, she did not claim that it failed to stop it. Instead, she asserted that within two weeks of her complaint to HR, the coworker received a written warning.

Claims response was inadequate. Importantly, she did not assert that the coworker or anyone harassed her again. Instead, she expressed her belief that the company’s response was inadequate, alleging for instance that there should have been “a store meeting reminding the staff about the ethics policy, especially considering it happened in such a public manner on the sales floor, and so many people knew about it.”

But was “reasonably calculated” to end it. However, Title VII does not prescribe specific action for an employer to take in response to racial or sexual harassment, or require that the harasser be fired, as the employee suggested should have happened here. Rather, so long as the discipline was “reasonably calculated” to end the harassing behavior, the “exact disciplinary actions lie within Best Buy’s discretion.”

Indeed, not only did the company take steps that were reasonably calculated to stop the harassment, but those steps did in fact end it. Thus, whether or not it could have done more was irrelevant. Moreover, her allegations that the coworker’s humiliating joke changed the work environment and caused her physical and psychological suffering did not help to impute liability. Rather, they were only relevant to whether the harassment was sufficiently severe or pervasive, which was not at issue.

Other allegations rejected. Though the employee also argued that other coworkers had been fired for using the N-word, her allegations were too general since they lacked dates, detail or context. Moreover, she acknowledged that the coworker was given a final warning and it was not the court’s role to “micro-manage” disciplinary procedures. Her contention that the coworker also called another worker and customers “gypsies” also lacked sufficient detail. Finally, the employee did not claim that the comments were directed at her, or that Best Buy knew or should have known about them.

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