Racial Harassment: Railroad employee’s racial harassment claim left at station
When an employee’s racial harassment lawsuit involves offensive language made by a supervisor, it’s easy to assume that the claims will be difficult, if not impossible, to defeat. However, as the following case from the Sixth U.S. Circuit Court of Appeals (which includes Kentucky) shows, even “despicable” racial comments that are isolated and not pervasive may not rise to the level necessary to establish a viable racial harassment claim. The court’s decision provides some comfort to employers that fear the consequences of a rogue supervisor’s boorish but isolated language.
Stephanie Williams was the only female and only African American employee at CSX Transportation Company’s Bruceton facility. She sued CSX for subjecting her to a racially hostile work environment, among other things. Specifically, she claimed:
(1) her supervisor, Ed Anderson, required her to clean feces off the bathroom wall and urinal – something her white counterparts never did;
(2) Anderson ordered her to strip the restroom floor with a manual tool even though another supervisor allowed a white employee to use a power tool;
(3) her supervisor broke policy and refused to reimburse her for mileage expenses even though white employees were reimbursed; and
(4) her car was keyed and her tires punctured.
In addition, Williams alleged that another supervisor, Jeff Wingo, made racist comments to her during two confrontations on two consecutive days. She claimed he said the United States should get rid of Jesse Jackson and Al Sharpton because “without those two ‘monkeys’ the country would be a whole lot better.” He also made comments about Williams, stating that she must be a Democrat because she is black and that if she returned to school, she wouldn’t have to pay because she was a single black mother.
The federal district court dismissed Williams’ racial harassment claim, finding that the behavior complained of was not “sufficiently severe or pervasive” to merit a jury trial. Williams appealed to the Sixth Circuit.
Sixth Circuit’s opinion
The Sixth Circuit started by noting that for an individual to establish an initial claim of racial discrimination, she must show the following:
(1) she is a member of a protected group;
(2) she was subject to unwelcome harassment;
(3) the harassment was based on race;
(4) it was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment; and
(5) the employer knew or should have known about the harassment and failed to act.
Regarding the third element, the court noted that the harassment need not be overtly racist. Rather, the court must find that the harassment wouldn’t have occurred but for the employee’s race. In analyzing the fourth element, the court noted that it must look at all the circumstances created by each perpetrator of the alleged harassment.
The court observed that Williams alleged three categories of racial harassment: (1) Wingo’s racist comments, (2) the damage to her vehicle, and (3) other adverse treatment at work. The court said the damage to her car couldn’t be based on race because she presented no evidence that the damage was committed by CSX employees or that it even occurred while she was at work. In addition, white employees testified that flat tires were common.
As for the other incidents – specifically, the bathroom cleaning duties – Williams presented no testimony that white employees were available to clean the bathroom on the day in question or that Anderson ever allowed employees to rent a power tool to scrape the floor. Finally, she admitted that every time she submitted an expense form, CSX reimbursed her.
The court then turned to Wingo’s racial remarks, noting that under established law, isolated incidents (unless extremely serious) won’t amount to discriminatory changes in the terms and conditions of employment. Observing that Wingo’s remarks were “despicable” as well as “insensitive, ignorant and bigoted,” the court held that they weren’t “sufficiently severe or pervasive” to create a jury question. Thus, the Sixth Circuit upheld the trial court’s dismissal of Williams’ claims. Williams v. CSX Transportation Company.
CSX was lucky to escape liability. And while it may be comforting to know that the “despicable, insensitive, ignorant and bigoted” remarks by the CSX supervisor weren’t found to be sufficiently severe or pervasive to create a hostile work environment, it’s entirely possible that another court faced with the same facts could decide differently. A jury could well have determined that the “severe or pervasive” standard was met in this case.
For that reason, you must train all employees – especially supervisors and managers – that the type of language encountered in this case (and in fact any inappropriate language regarding race or another protected category) is always unacceptable and can subject an offending employee to severe discipline, up to and including termination.
If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department. Find us online at www.gdm.com.
Copyright 2011 M. Lee Smith Publishers LLC
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.