Harassment cases always have been challenging for employers to defend, largely because of the he-said/she-said nature of those claims.  Still, as a new decision from the Fourth Circuit Federal Court of Appeals – the jurisdiction in which West Virginia sits – reminds us, the importance of strong anti-harassment policies, training for employees, and a prompt response to hostile environment complaints before a lawsuit is ever filed go a long way towards positioning the employer well to defend one when it is, regardless of which person has the more credible account of what happened.

In EEOC v. Xerxes Corp., Case No. 10-1156 (4th Cir. April 26, 2011), the Equal Employment Opportunity Commission brought a class action lawsuit against Xerxes under Title VII of the Civil Rights Act based upon a racially hostile environment.  In the case, the named Plaintiffs had complained to certain members of management about various incidents of racial name-calling, inappropriate language, and pranks.  Prior to February 2006, the complaints were made to a shift supervisor who failed to address the situation.  After February 2006, when the complaints were made at the plant superintendent and plant manager levels, they were immediately and definitively addressed.  The Plaintiffs argued that, because subsequent incidents of harassment followed the initial incident, the employer’s response must have been inadequate, making the employer liable.

Fortunately for employers in this region, that argument fell flat.  The Court noted that an employer need only take steps reasonably calculated to end the harassment, not “dispense with fair procedures for those accused or to discharge every alleged harasser.”  It found that a good faith investigation which turns up nothing could satisfy the requirements of Title VII even if a jury later concluded that harassment occurred.  In addition to the way which Xerxes handled the Complaints when they were made, the existence of company’s comprehensive anti-discrimination and harassment policy was a factor the Court relied upon in ruling in the employer’s favor, as was the fact that Xerxes trained employees on the policy when they were hired and annually thereafter.

Xerxes’ actions in this case are where the true lessons of this decision for employers are found:

  • In February 2006, employees accused of name-calling were interviewed.  Admitting that they had used the term “boy” but denying any racial connotation, Xerxes had the accused apologize to their offended co-workers.  The superintendent also conducted refresher training on the anti-harassment policy with that shift’s employees.
  • In May 2006, complaints were made about racial remarks that included use of the “N word.”  A comprehensive investigation ensued in which more than a dozen interviews were conducted.  Again, the offending parties apologized, but this time, they were issued two-day, unpaid suspensions with final warnings.  The offenders were retrained on the policy.  Additionally, Xerxes conducted refresher training of all employees with separate sessions for supervisory personnel.  The complainants were also provided with a written summary of Xerxes response.
  • No further incidents occurred for nearly a year until April 2007.  At that time, an employee found a note in his locker that said, “KKK plans could result in death, serious personal injury, NIGGA BENARd.”  Xerxes conducted its own investigation, as did the police to whom it reported the incident.  No culprit was found.  Nevertheless, Xerxes advised its employees that it would take immediate action that would probably result in termination if the culprit was identified.  Following the incident, the plant manager periodically checked in with the complainant to see if he was experiencing any problems.  At one point, the employee said his toolbox lock had been damaged in a prank.  The plant manager replaced the lock and reminded the employee to come forward with any concerns immediately.
  • The final incident occurred in June 2007 involving a stick figure hanging by a noose and the phrase, “IH IH MY N*****.”  Again, the police were notified.  This time, Xerxes’ corporate EEO Coordinator traveled to the plant to investigate, but no culprits were found.

In sum, while every harassment case will differ to some extent on its facts, the Xerxes case reminds us that an employer’s actions in responding to any harassment claim should, at minimum, include some or all of the following:

  1. Conducting a prompt investigation
  2. Counseling and disciplining offending employees
  3. Retraining employees and supervisors
  4. Making proportional responses to the seriousness and frequency of the harassment
  5. Progressively increasing the discipline meted out in response to repeat conduct
  6. Responding in a manner reasonably calculated to end the harassment.
Vanessa Towarnicky's primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment; deliberate intent; age, race, and disability discrimination; wrongful discharge; and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals.
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