Title VII Requires a Prompt Corrective Response, Not a Perfect Response

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So says the U.S. Court of Appeals for the Sixth Circuit in rejecting an employee’s claim that the employer failed to respond appropriately to his complaint of racial harassment.

In Burns v. Berry Global, Inc., the employee reported multiple incidents of racial harassment (notes and nooses). After each incident, the employer took various actions, which in total included the following: reviews of security footage; employee interviews; warning employees against engaging in harassment; directing supervisors to monitor for offensive displays; adjusting the surveillance cameras and moving the lockers to enable better surveillance; an unsuccessful attempt to set up an employee group to address morale issues; and conducting refresher “Code of Respect and Nonharassment” training. The employee was also provided access to the Employee Assistance Program for counseling services, given time off, and offered a transfer to another shift. Unfortunately, the employer was unable to identify the harasser and the harassment continued. The employee resigned following the last incident.

An employer will be liable under Title VII for co-worker harassment if its response shows indifference or is unreasonable. A response is considered adequate if it is reasonably calculated to end the harassment. The Sixth Circuit has identified steps that may establish reasonably appropriate corrective action: promptly initiating an investigation to determine the factual basis for the complaint, speaking with the specific individuals identified by the complainant, following up with the complainant regarding whether the harassment was continuing, and reporting the harassment to others in management. The Sixth Circuit found that all of those things had happened here.

More specifically, the Sixth Circuit rejected the employee’s argument that additional training should have been done, noting that nothing legally requires the employer to conduct such training, particularly where the employer had already conducted training during the onboarding process and required employees to acknowledge the non-harassment policy in writing. Similarly, the use of the company HR generalist to conduct the investigation was not unreasonable, as there is no legal requirement to use an outside investigator. The Sixth Circuit concluded that, even if not perfect, the employer took prompt action that was reasonably directed at determining the source of the harassment.

While employers may be reassured that they will not be required to provide a “perfect” – as dictated by the complainant – response to a harassment complaint, they should keep in mind that their goal should not be to do the bare minimum, but rather their response must be prompt, thoughtful and appropriately calculated to stop any harassment.

Source: Shawe Rosenthal LLP – Fiona W. Ong

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