Unfortunately, harassment and discrimination can occur in the workplace, regardless of how strong an employer’s policies are or how frequently training is offered. Occasionally it is clear who the perpetrator of such harassment and discriminatory practices is, but at times such practices may arise from an unknown source. The Sixth Circuit’s recent decision in Burns v. Berry Global sets forth a great outline for employers addressing harassment and discriminatory practices from undetermined sources, including an employer’s obligations to investigate and mitigate such treatment.
Background
The employee in Burns v. Berry Global, Mr. Burns, a black man, was hired by Berry Global in January 2018 to work as a night shift maintenance technician. Less than a year into his employment, Mr. Burns discovered an offensive note in his locker which read “dance monkey.” Mr. Burns reported the note to his employer, who immediately began investigating the source of the note. The employer’s Plant Manager, HR Generalist, and Mr. Burns’ immediate supervisor reviewed security camera footage over several days but were unable to determine who left the note. The employer also held a meeting with the other employees on the night shift and advised them that this type of harassment would not be tolerated.
During the employer’s investigation into the first note, Mr. Burns discovered a noose hanging from the lock on his locker, and the initial investigation was expanded to cover the noose. In all, 19 employees were interviewed. The employer also implemented preventative measures, such as requiring managers to walk through the locker areas before and after every shift, ordering new lockers, and adjusting the security cameras to better capture the locker area. Despite these additional investigative and preventative measures, the employer was still unable to identify the perpetrator of the discrimination.
About a month after the first note was discovered, the employer conducted training on their Code of Respect, which allegedly covered harassment and discrimination. However, this training was not effective as Mr. Burns was the victim of another offensive note which read “die n*****” the day after the training. The employer investigated this third instance of discrimination and determined that only one employee was present for all three instances of harassment. That employee was immediately suspended pending the employer’s investigation. In the meantime, Mr. Burns was given time off, which he accepted, and was offered to be moved to the day shift, which he declined. However, the employer’s investigation ultimately did not conclusively determine the identity of the harasser. The suspended employee was offered his job back but refused to return.
Then, months later, Mr. Burns discovered a second noose, this time in his toolbox. Mr. Burns and his supervisor reviewed the employer’s security footage but were unable to identify the perpetrator. Interviews were similarly unsuccessful at identifying the individual. After Mr. Burns was informed that the fourth investigation was complete and ultimately inconclusive as to the harasser, Mr. Burns resigned and subsequently brought suit for racial harassment, maintaining a hostile work environment, and for constructive discharge.
Assessing Liability
There are two theories of liability by which an employer may be responsible for racial harassment at the hands of their employees: (1) the coworker theory of liability and (2) the supervisor theory of liability. Under the coworker theory of liability, an employer is liable only if they negligently control the working conditions. However, if the employee can demonstrate the supervisor was the perpetrator of the racial harassment, then the employer is strictly liable for harassment by supervisors.
Here, Mr. Burns could not demonstrate the harasser was a supervisor, so the court assessed the issue under the coworker theory of liability only. In claiming the employer was negligent in addressing the harassment, Mr. Burns alleged the employer should have held discrimination and harassment-specific training, began their investigations immediately rather than days to a week after the incident, and that the employer’s overall investigation efforts were ineffective because the harasser was never identified.
Holding
The Sixth Circuit Court of Appeals upheld the lower court’s grant of summary judgment to the employer, holding the employer’s response to the discrimination was reasonably calculated to end the harassment, even if such harassment never ceased. In reaching their holding, the court emphasized that the employer’s efforts to investigate and mitigate the harassment were sufficient at addressing the harassment. The court especially found that the employer’s prompt investigations and corrective action were sufficient to avoid liability, including communicating with the victim, being transparent with the victim, conducting dozens of employee interviews, evaluating days of security footage, modifying security footage to better capture the perpetrator, offering the employee time off and to switch shifts, conducting pre and post-shift inspections, meeting with other employees, ordering new facility equipment, warning and training employees, and suspending a potential suspect.
Consequently, although the harassment never ceased, the employer’s response to the harassment was not negligent and moreover, the response was reasonably calculated to end the harassment.
Employer Takeaways
In all, this decision demonstrates that employers are not required to be perfect when addressing discrimination and harassment, but such efforts do need to be reasonable and calculated. Accordingly, when an employer is informed of discrimination or harassment coming from an anonymous source, employers should conduct prompt, thorough investigations. Such investigations should include interviewing all potential witnesses, reviewing any security footage or pictures, and collecting physical evidence. In addition to a prompt investigation, employers should consider the following mitigating and preventative measures:
- Hold harassment and discrimination training;
- Have employees review and sign off on employer discrimination and harassment policies;
- Offer scheduling changes to the victim;
- Alter or adjust the workplace to alleviate hiding spots for the perpetrator;
- Hire an outside investigator who specializes in workplace investigations.
The attorneys at Fishel Downey regularly advise employers on issues relating to racial harassment and investigations in the workplace. If you have a specific question or scenario, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.