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Employment Law Alert: Two Interesting Cases: One Favors Employers, The Other, Employees (At Least In Indiana)

On July 19, a Tennessee federal court awarded summary judgment to an employer being sued for racial harassment, based on recurring incidents of racial graffiti appearing in the men’s bathroom. Because the alleged graffiti artist was a co-worker of the plaintiff, rather than a supervisor, the court noted that the company, Dacco, Inc., could only be held liable if it knew about the alleged harassment and failed to take appropriate corrective action. However, the facts demonstrated that, upon being informed of the graffiti by the plaintiff, his supervisor immediately arranged to have it painted over. When it reappeared, it was again promptly removed, and surveillance was conducted, resulting in the suspected graffiti artist’s termination. On these facts, the court concluded that Dacco had not acted negligently in responding to the alleged racial harassment, and thus could not be held liable under Title VII.

The second case, decided on August 1, is of particular interest to employers in Indiana. It involves a so-called “Frampton claim” -- that the plaintiff -- an “at will” employee -- was terminated in retaliation for having filed a workers’ compensation claim. The twist in this case is that the plaintiff’s employment was never actually terminated by his employer. Instead, he claimed that, after he was injured at work and filed a workers’ compensation claim, management “ridiculed” him, accusing him of faking his injury and being a malingerer. This conduct, claimed the plaintiff, became so intolerable that it forced him to resign his employment. Thus, his workers’ compensation retaliation claim was based on his allegedly having been constructively discharged. Such a claim was not previously recognized in Indiana under the Frampton case. After this case, plaintiffs in Indiana have another cause of action weapon in their arsenals. Now, they will not have to show an actual termination in order to claim workers’ compensation retaliation.

Bottom Line

The first decision was clearly correctly decided, because it appears from the facts that the employer did everything it could to remove the offensive graffiti once it became aware of it, as well as to locate and punish the suspected graffiti artist. As for the Indiana case, it opens the door to a new cause of action for plaintiffs in that state. We will just have to wait and see how many individuals jump on the bandwagon in bringing such claims.



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