How An Employer Avoided Liability For A Racist Mixed Nuts Joke
There are a variety of different senses of humor such as dry/witty humor, bathroom humor, and self-deprecating humor. The following joke, taken from a recent Fourth Circuit Court of Appeals case involving a claim by a Black woman who worked at a Best Buy, does not fall into any acceptable category:
[White Best Buy employee eating mixed nuts who identifies a Brazil nut and asks a group of co-workers]: Hey, do you know what these were called back in the day?
[Co-workers] No response.
[White Best Buy employee holding Brazil nut]: Do you promise not to call HR on me?
[Co-workers] No response.
[White Best Buy employee holding Brazil nut looking at only Black woman in the group and laughing]:N[****r] T[*]ts!
The Black woman, whose name was Erika Bazemore, and the white woman were coworkers, not in a supervisory relationship. This fact was crucial to the court in deciding that Best Buy would not be held liable for the horribly racist "joke."
After the incident, Ms. Bazemore reported the incident to HR. She said that she felt like the remark was directed to her, and that she was humiliated. She said the joke “took [her] back to the days of [s]lavery, when black women would be publicly scrutinized before being sold." HR told Ms. Bazemore they would handle the matter. When talking to HR, the woman who made the joke admitted that she made it, and Best Buy issued her a final written warning about her statement.
But Ms. Bazemore didn't see any evidence that the matter was handled. She called HR trying to get an update and left them a voicemail, but did not receive a call back. Figuring that nothing was going to be done about her traumatic experience, she sued Best Buy for a hostile work environment.
Ms. Bazemore's case was dismissed because the white coworker's statement was not imputable to Best Buy. The court held that Best Buy acted properly because once it received the complaint it took action to stop it from happening again.
Some legal background: in order for a plaintiff to succeed with a claim for hostile work environment, there has to be severe, pervasive, and unwelcome conduct based on an employee's race or sex, and that conduct must be imputable to the employer. One way to impute liability is if the conduct is made by a supervisor, which wasn't the case here. Where the conduct is made by a co-worker, the plaintiff must show that the employer knew or should have known about the conduct and failed to take action calculated to stop it.
Here, Best Buy did take action - it issued the final warning. Even though Ms. Bazemore didn't know about the final warning, the court held that the action was sufficient, noting:
Plaintiffs often feel that their employer could have done more to remedy the adverse effects of the employee's conduct. But Title VII requires only that the employer take steps reasonably likely to stop the harassment.
As is often noted by courts, a court deciding a discrimination lawsuit "does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination." The exact disciplinary steps are at the employers discretion, so long as they are reasonably calculated to stop the unwelcome conduct.
The takeaway: Courts have held that even one instance of such deplorable behavior such as using the N-word in the workplace by a supervisor can create liability for a hostile work environment. This case, shows, however, that similar conduct by a co-worker may not result in a valid claim if an employer takes action to stop the improper conduct. So what should employers do?
Have a policy in place that prohibits improper conduct.
Have a an easy method (or methods) for employees to report ethical violations.
Take all complaints seriously, and investigate thoroughly.
Take appropriate action if a violation is found.
So Best Buy did everything right? Legally, sure, but might they have been able to save themselves the time and expense of litigation if maybe they had returned Ms. Bazemore's phone call?
Of course, Best Buy wouldn't have been able to tell Ms. Bazemore what disciplinary steps they issued. But if they told her that they did take steps to make sure the incident wasn't repeated and that she should let them know if there were any further issues, who knows whether she would have filed the lawsuit, right?