By Dave Strausfeld, J.D.
A university could not be held liable for a hangman’s noose placed in a building services foreman’s work area because it did not act negligently in attempting to remedy the situation, even though the only substantial step it took in response was to involve the university police, held the Seventh Circuit, affirming summary judgment for the university on his Title VII hostile work environment claim. While the foreman also alleged he was subjected to other incidents of harassment based on his race, such as being accused of unauthorized key possession, there was no evidence these "neutral" incidents were connected to his race, despite the fact that he was the only African-American foreman in the department, so they could not support his HWE claim (Cole v. Board of Trustees of Northern Illinois University
, September 27, 2016, Hamilton, D.).
Noose placed in his work area.
When the foreman discovered a hangman’s noose in his work area, he threw it away. When it (or a second noose) appeared outside his building the next day, he called two police officers he knew for advice, and both advised him to "keep his cool" and try to "smoke out" the perpetrator. Taking their advice and hoping to lead the perpetrator to identify himself, he maintained a nonchalant facade and told his supervisors it must have been meant as a joke and was "no big deal.”
He and a supervisor did report the matter to the university police, and the ensuing police investigation, which was eventually halted for unknown reasons and ultimately proved fruitless, was the only substantial step the university took after the noose incident. Leaving the matter entirely in law enforcement’s hands, the building services department did not conduct any meetings or training sessions or take other actions.
Neutral incidents not considered.
Prior to the noose incident, the foreman had been subjected to other types of hostile conduct. But the Seventh Circuit concluded these other events could not be counted toward a HWE because there was no evidence they were based on his race. It is true, the appeals court emphasized, that forms of harassment that might seem neutral in terms of race can contribute to a HWE if other evidence ties the superficially neutral events to "the entire context of the workplace." Thus a harasser’s actions or remarks that do not seem based on unlawful animus may be "sufficiently intertwined" with discriminatory remarks to conclude that discriminatory animus motivated all of them. But whether such an inference is appropriate depends on the circumstances of the case.
Here, the seemingly neutral events the foreman believed contributed to a HWE—such as being repeatedly accused of unauthorized key possession, having a substantial paper towel order placed in his name without his knowledge, and having his office door kicked in overnight, his office cleaned out, and all his supplies moved to a cart—were connected to race only insofar as they had happened to him and him alone, and he was the only African-American foreman on staff. But "that by itself" was not enough to raise a genuine factual dispute as to whether those events constituted race-based harassment. Summarizing, the appeals court wrote that "not every perceived unfairness in the workplace may be ascribed to discriminatory motivation merely because the complaining employee belongs to a racial minority," quoting its 2005 decision in Beamon v. Marshall & Ilsley Trust Co.
This left for analysis the foreman’s discovery of the noose. The district court had rejected his HWE claim, finding no evidence the noose was displayed or intentionally left for him
to find. Disagreeing, the appeals court "hesitate[d] to conclude that a single factor like this is dispositive," noting that a hangman’s noose is "a visceral symbol of the deaths of thousands of African-Americans at the hand of lynch mobs," and adding that it was not willing to "flatly reject as ‘insufficiently severe’ an entire set of cases involving such claims."
However, the appeals court found no need to "lay down here firm rules for when a noose in the workplace is or is not severe enough to be actionable." Even if the noose incident was severe enough in itself to create a HWE, the foreman had not established a basis for employer liability.
To hold the university liable in this case, the foreman needed to show that the university was negligent—which meant in this context that it failed to take prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring. A negligence standard applied because there was no evidence a supervisor was involved in leaving the noose.
The record did not support a finding of negligence, the appeals court found. On learning about the noose, the foreman’s supervisor spoke to him about it, delivered her own notes to the university police, and reported the matter to university administrators. Based on the circumstances here—including the foreman’s reaction in which he said he believed the noose was a joke and "no big deal"—the appeals court saw no basis to find the university negligent.
"To be clear," the court wrote, "we do not hold that an employer necessarily fulfills its responsibility to take appropriate corrective action if it has reported an incident to some other party." But faced with an incident "that lacked any other threatening overtones" and that the employee himself "characterized as a joke," it was reasonable to leave the matter to university police and forgo additional action within the building services department. Consequently, the appeals court affirmed summary judgment for the university on the foreman’s HWE claim.
The foreman also claimed he was retaliated against in violation of Title VII for filing an ethics complaint. But his claim failed because nothing in his ethics complaint suggested he was opposing race discrimination or any other type of discrimination. He argued he was implicitly
complaining of race discrimination because he was the only African-American foreman in the department and the only subject of the conduct of which he complained. Rejecting his argument, the appeals court stressed that "his membership in a protected class, without anything more, is not enough to transform his general complaint about improper workplace practices into a complaint opposing race discrimination." His disparate treatment claim failed as well.