Over my career, I have dealt with my share of “you can’t make this up” situations. The kind where outrageously offensive or harassing workplace behavior has occurred, and the employer needs to – and wants to – figure out who did it and take steps to stop it from happening again. Indeed, that’s one of the benefits of representing management: you can have the chance to assist in helping change culture (even if that “culture” appears to have been the misguided efforts of a couple of chucklehead employees).
Not to give anyone ideas, but one case I had involved finding a shoebox of human excrement on the boss’s desk. Lest you think that was a one-off, in a similar case (not mine) years later the employer actually DNA tested two employees to determine whether “it was theirs,” resulting in a GINA violation that cost the company $2.25 million dollars. See Lowe v. Atlas Logistics Grp. Retail Servs., 102 F. Supp. 3d 1360 (N.D. Ga. 2015). So, please don’t do that.
Sometimes an employer simply cannot find the culprit, despite its best efforts. Should that fact alone warrant holding the company liable for harassment? Not according to a recent Fifth Circuit decision. Anderson v. YRC, Inc., 2018 U.S. App. LEXIS 2052 (5th Cir. Nov. 12, 2018) (per curiam) (unpublished).
Auther Anderson and Gary Richardson worked for a trucking company in Irving, Texas. On February 5, 2013, a noose was displayed in the workplace. Now, a noose is one of those “zero tolerance” items in every circumstance, and the company immediately began a harassment investigation.
YRC interviewed more than 450 employees and reviewed over 250 hours of video footage. Company representatives reported the incident to federal and local authorities and started a “secret-witness program” to enable people to report concerns without fear of attribution. It also increased security, prohibited the use of rope at work, and sent out weekly reminders of its anti-harassment and vandalism policies.
But, it never did figure out who the culprit was. Anderson and Richardson sued, claiming that the company had created a racially hostile work environment. Of course, under relevant law, assuming the other elements of the claim are present (i.e., unwelcome conduct based on protected status of which the employer knew or reasonably should have known), the pivotal element is whether the employer took prompt remedial action reasonably calculated to end the harassment.
The district court found that YRC had done so and granted summary judgment. On appeal, Anderson and Richardson claimed that the investigation was “mere window dressing” because no one was fined, suspended, or fired as a result. But this is the sort of reverse logic the LSAT was designed to screen out. The result of an investigation cannot dictate whether the scope of an investigation was adequate. If what YRC did here was “window dressing,” then the window was huge.
The Fifth Circuit affirmed, agreeing that YRC had taken “prompt remedial action reasonably calculated to end the harassment,” and holding that no reasonable trier of fact could conclude otherwise.
The take away here? Employers need to be thoughtful and diligent when investigating claims of discrimination and harassment. Any investigation must be immediate and thorough, satisfying not only management that it has done what it is legally required to do, but satisfying those who might independently review its actions that it “did the right thing” to put a stop to misbehavior and change culture going forward.