Labor & Employment Law Daily Supervisors’ racial comments to and about janitors support revival of hostile environment claim
Wednesday, June 13, 2018

Supervisors’ racial comments to and about janitors support revival of hostile environment claim

By Kathleen Kapusta, J.D.

Agreeing in part with the decision of the court below, the Seventh Circuit found that five African-American janitorial employees failed to set forth sufficient evidence to defeat summary judgment on their Title VII claims of race discrimination in pay, failure to promote, termination, and discriminatory work assignments. Reversing the lower court’s grant of summary judgment in part, however, the appeals court found that their claims regarding racially derogatory speech and a hostile work environment fell “on the other side of the line.” Thus, this claim was remanded to the district court for a determination on the merits. Judge Manion, dissenting in part, agreed with the lower court that the “things each plaintiff heard were too isolated, indirect, and sporadic to be actionable” (Johnson v. Advocate Health and Hospitals Corp. dba Advocate Christ Medical Center June 8, 2018, Rovner, I.).

The five environmental service technicians (EVS techs) cleaned and disinfected hospital rooms and common areas, made beds, and performed other janitorial work for Advocate Health. In 2012, Advocate contracted with Aramark Healthcare Support Services, which became responsible for managing the EVS department. Shortly thereafter, the employees claimed that three Aramark supervisors began discriminating against them based on their race, including paying them less than white EVS techs, denying them promotions and raises, terminating them in a discriminatory fashion, and subjecting them to offensive and derogatory racial comments.

Lower court decision. The employees sued Advocate and the district court, finding they did not experience severe or pervasive race-based harassment, there was no basis for employer liability, and they failed to demonstrate that racial animus motivated the decisions to terminate three of them, granted summary judgment to the hospital on all claims.

Disparate treatment. Affirming summary judgment on the employees’ disparate treatment claims, the appeals court found that as to most of them, they failed to identify similarly situated employees outside their protected class who were treated better. For example, as to the pay disparity claim of two of the employees, while each claimed two white associates who did not have previous housekeeping experience told them their hourly rates were higher, they failed to submit evidence such as pay records, their qualifications or experience, who supervised them, how long they had worked at the hospital, what types of reviews they received, and if they had been subject to any discipline.

As to the failure-to-promote claim of two employees, the court observed that the “most we could find through our charitable truffle hunting was a sprinkling of speculative statements that the white employees who received the positions seemed like they may have been less qualified than African-American candidates.” The lack of a relevant comparator similarly doomed the claims of three employees that they were terminated because of their race. For example, while one of the employees claimed that management unfairly criticized him, held him to unfair standards, nitpicked and micromanaged him, the court pointed out that this evidence could not support a claim for race discrimination unless he could show that similarly situated non-African-American employees were not treated in the same manner.

“A supervisor who nitpicks, micromanages, and holds employees to unreasonable standards is simply a bad boss,” said the court, observing that it “is only if she applies this poor management unequally based on race that a plaintiff has a claim for race discrimination.” Accordingly, the court affirmed summary judgment against their claims that they were treated unfairly based on their race.

Hostile work environment. As to their hostile work environment claim based on the supervisors’ racially derogatory comments, the appeals court disagreed with the lower court’s conclusion that as a matter of law the conduct complained of was not sufficiently severe or pervasive. Here, the court noted evidence that one of the supervisors told one of the employees he “cleaned like a monkey,” another supervisor often used the N-word around African-American employees and mocked one of the plaintiffs by using stereotypical African-American slang, and a third supervisor told one of the employees not to give him the “black girl ghetto attitude.”

In addition, although it carried less weight, there was evidence regarding comments made to non-plaintiff coworkers, such as the declaration of an EVS tech that after a supervisor asked him if he knew anyone who would be interested in working at Advocate, she told him “I don’t want any blacks. They’re lazy.” In addition, a dispatcher for the EVS department stated that when she told the same supervisor that she thought she could handle being a supervisor in the EVS department, the supervisor responded, “Honey, you’re the wrong color.”

Further, there was also evidence in the form of comments by the supervisors to others of which the employees later learned. Specifically, the court found that it appeared to be well known throughout the hospital that one of the supervisors used racially offensive terms such as “porch monkey.” Although the appeals court cautioned against elevating workplace rumors to evidence of a hostile work environment, it noted that coupled with other evidence this testimony might have relevance to the employees’ claim. This collective evidence, said the court, was sufficient to allow a reasonable jury to find that each of the employees experienced a racially hostile work environment.

Employer liability. Turning to the issue of employer liability, the court noted that while Advocate was the defendant in this case, the alleged discrimination came at the hands of Aramark’s supervisors. Accordingly, to determine whether Advocate, Aramark, or both served as the employees’ de facto employer for purposes of Title VII liability, the court looked to Knight v. United Farm Bureau Mut. Ins. Co.’s five-factor test, of which the ability to hire and fire ranked as the most significant.

Here, the court found that while the Aramark supervisors did have some supervisory and control powers in the sense that they supervised work, created schedules and assignments, recommended discipline, etc., by contract, however, a significant amount of control remained with Advocate. Thus, Advocate was at least one of their employers. Because it found no evidence of discrimination, the district court, did not address the remaining Knight factors, nor delve further into the role that Aramark supervisors played in “tangible employment actions” directed at the employees. Because it had found a fact question regarding the racially derogatory speech, the appeals court concluded that it was “worth a full airing by the district court” as to the relationship between Advocate, Aramark, and the employees.

Mere rubber stamp? Although Advocate, pursuant to the contract between the two companies, retained final control of most of the tangible employment actions like hiring and firing, it was also possible, said the court, that in reality, Advocate acted as a mere rubber stamp for the recommendations of Aramark supervisors about these tangible employment actions. Once the district court ferrets out the question of supervisor status and the relationship between the entities, it can determine under which standard Advocate might be held liable for actions by Aramark supervisors—strict liability or negligence. And, the appeals court continued, depending on which standard applies, the district court may need to consider whether Advocate took “prompt and appropriate corrective action reasonable likely to prevent the harassment from recurring.” Further, the lower court would have an opportunity to consider the remaining four Knight factors.

Partial concurrence and dissent. Although Judge Manion agreed that the employees failed to adduce enough evidence to avoid summary judgment on their various disparate treatment claims, he argued that none of the employees proffered sufficient evidence to avoid summary judgment on their hostile work environment claims. Thus he dissented from that portion of the court’s opinion and judgment.

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