As an employer, when it comes to compliance with employment laws and regulations, you strive to do everything right.
You enact strongly-worded policies prohibiting discrimination and harassment. When an employee complains, you promptly investigate. When your investigation reveals a violation of your policy, you take appropriate action against the violator. You conduct regular (or additional) training or otherwise communicate your expectations to the staff. It sounds like you have covered all your bases ... but have you? As a recent case makes clear, an employer who does all of this can still be found liable for allowing a hostile work environment to persist.
In Renfroe v. IAC Greencastle, LLC, the employer had an anti-harassment policy in place, as well as a dress code that prohibited employees from wearing clothing with offensive words or pictures. However, when the plaintiff first visited human resources to complain about co-workers wearing clothing displaying the Confederate flag, nothing was done. After the employer hired a new HR Manager, the plaintiff sent her a photograph he had taken of an employee wearing a shirt with the Confederate flag. The new HR Manager investigated, required the employee to change clothes, and referred her for discipline.
The employer also required all employees to attend a respectful workplace training session and sent multiple emails to staff reminding them about the dress code. The HR Manager's testimony that she had not seen anyone wearing clothing with the Confederate flag did not square well with the plaintiff's evidence (including photographs of as many as ten employees) that he saw such items on a daily basis, as well as a former supervisor's testimony that he routinely saw employees wearing such items, even after the above corrective steps were taken.
The plaintiff also complained about harassing statements made to him by co-workers. HR's response to these complaints varied. In one instance, HR required the offending employee to apologize to the plaintiff. In another instance, the complaint was brushed off by the HR Manager. When the plaintiff next reported that racially offensive comments had been made about him on the union's Facebook page, the HR Manager did nothing more than discuss the matter with union committee members. In contrast, when the plaintiff reported another offensive comment, HR promptly investigated, issued the employee who made the comment a two-day suspension, and sent the employee to anti-harassment training. Around this same time, the HR Manager asked the plaintiff to let her know if he experienced any other instances of harassing behavior.
The plaintiff did not return to HR, but he later filed a Charge of Discrimination and subsequently a lawsuit, in which he alleged that, despite his multiple complaints, his corkers had continued wearing items with the Confederate flag. After concluding that the co-workers' actions constituted a hostile work environment, the federal district court next examined whether a basis existed for assessing employer liability. An employer's liability for a hostile work environment caused solely by co-workers hinges on whether or not the employer knew or should have known about the conduct and whether it responded in a manner reasonably calculated to prevent further harassment.
Despite the fact the employer had conducted investigations and taken action in response to a number of the plaintiff's complaints, the court was unwilling to conclude as a matter of law that the employer had met its obligation to remedy the harassment. Given evidence that co-workers continued to come to work wearing clothing and other accessories printed with the Confederate flag in the months following the remedial action by HR, the court refused to dismiss the case, instead leaving it for the jury to decide the employer's fate at trial. As the court explained, if the employer knows, or should know, that harassing behavior has not stopped, then the action taken -- no matter how aggressive or comprehensive -- will not save the employer from liability.
The Renfroe case serves as a reminder to employers that they cannot simply "go through the motions" when an employee complains about discrimination or harassment. It also makes clear that the employer who overlooks continued instances of misconduct, because the complaining employee has not returned to report additional misdeeds does so at its peril. As the court in Renfroe held, when something as obvious as employees wearing clothing with offensive imagery in violation of company policy continues to occur after implementing corrective action, the employer who fails to notice, or who notices but fails to take additional action, will be subject to liability. Placing a call to your legal counsel to discuss the steps of your investigation, whether and/or what corrective action is warranted, and how to ensure that harassing behavior does not recur will bring peace of mind and help protect the company from liability.
•Germaine Winnick Willett is a member of Ice Miller's Labor, Employment and Immigration Group. She and Ice Miller's other labor and employment attorneys assist employers faced with employment discrimination, harassment, retaliation, wage and hour, contract and other employment-related issues; provide advice and counsel regarding employer investigations; and conduct on-site training. For additional information, contact Germaine at (317) 236-5993 or firstname.lastname@example.org or any member of Ice Miller's Labor, Employment, and Immigration Group. This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.