Sixth Circuit Reverses Employer's Summary Judgment on Racial Harassment and Retaliation Claims Based On "Seemingly Neutral" Actions.

Last week, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on a racial harassment and retaliation claim.  Jones v. Fluor Facility & Plant Services, No. 24-5249 (6^th Cir. 3/5/25).   The Court found that the plaintiff had produced enough evidence that "seemingly neutral" conduct was race related, severe and pervasive.   The plaintiff had also complained to his manager and supervisor, who took some remedial action, but his co-workers then began ostracizing him and hiding his equipment.  HR referred to his as “horseplay” that was unrelated to his race even though he was often referred to as “boy” and a ‘rapper” and “basket ball player.”

According to the Court’s opinion, the plaintiff had been hired for the day shift, when he was harassed by a white co-worker for two weeks.  That co-worker was fired and the plaintiff was transferred to the nigh shift, where there were only five employees.  He was again racially harassed, including the n-word.  His supervisor took action within two weeks without him having to complain.  Thereafter, he was subjected to less obvious harassment, including hiding his equipment, ostracizing him, and stereotypical comments about how he must be good at basketball or be a rapper.  After he was counselled for working without his safety harness, which he alleged had been hidden from him by his racist co-workers, HR conducted an investigation which found the “horseplay” was unrelated to his race.   However, the investigation seemed to stall for several months, so he filed an EEOC Charge.  The district court also agreed that the alleged harassment, although daily, was not severe or pervasive enough to constitute actionable harassment and seemed unrelated to his race.   The Sixth Circuit reversed.

We conclude that [the plaintiff] has established, at the very least, a factual dispute as to whether this seemingly neutral conduct was race-related. We have said that “[c]onduct that is not explicitly race-based may be illegally race-based and properly considered in a hostile-work-environment analysis when it can be shown that but for the employee’s race, [he] would not have been the object of harassment.”

  . . . .

[The Plaintiff] presents evidence of two categories of incidents fairly tied to his race. The first set of incidents are verbal harassment directly linked to Jones’ race, the second set of incidents may facially present as race-neutral, but a factfinder could nevertheless infer that they were race-based.  . . .

As to the first category, Jones established three uses of the n-word by his coworkers: One direct usage, when [one co-worker] referred to [the plaintiff] as a “nigger,” and two indirect usages, when [another co-worker] used the term during the November 9 meeting to argue that it should be okay to continue to refer to [him] that way. The n-word is indubitably racist, “highly offensive and demeaning,” . . .

As the district court acknowledged, [the plaintiff] also submitted evidence that [a co-worker] goaded him to make racist jokes, and [that co-worker] told racist jokes himself. Whether [his] evidence of the “content or frequency” of these occurrences was insufficient, or whether they were “mere offensive utterances,” as the district court concluded,  . . .  goes to whether the harassment Jones faced was severe or pervasive, but not to whether the harassment was race-based. A factfinder could readily conclude that “but for” [his] race, he would not have been the subject of [that] goading.  . . .  The same is true for [that co-worker’s] comment that another white coworker,  . . . , was [his] “boy” after [that person] spilled oil on himself. [He] fairly understood this comment to be racial in nature, as it allows the inference that [the co-worker] was implying a familial relationship between [the person] and [the plaintiff] after [the person’s] skin was presumably rendered black because of the oil.

. . . “facially neutral abusive conduct can support a finding of animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly discriminatory conduct.” . . .

For the same reasons, we can attribute racial motivation to the night crew’s ostracization of [the plaintiff]. There were “multiple instances in which [he] was ostracized” as the only African American on the night crew. . .  As [his supervisor] testified, efforts to exclude [him] were led by [two coworkers], who had previously made racist comments or used racial epithets. Further, the ostracization coincided with racist verbal harassment. This provides sufficient evidence for a reasonable factfinder to conclude that Jones’ complained-of ostracization was based on race. . . .

A rational factfinder could also find that other incidents cited by [the plaintiff] that may lack explicit racial animus may nevertheless constitute racial harassment under Title VII. For one, [he] presented evidence that his white coworkers referred to him as “boy.” We have said that although not explicitly racial, a white colleague “referring to an adult African American colleague as ‘boy,’ without ‘modifiers or qualifications’ can qualify as evidence of impermissible racial bias.” . . . . Likewise, white coworkers’ comments referencing [him] being a rapper or a basketball player may not be explicitly racial out of context. But these comments undoubtedly reflected African American stereotypes such that a rational factfinder could find that they would not have been made but for Jones’ race, as Jones recognized.  . . . . Therefore, the comments may be “properly considered in a hostile-work environment analysis.” . . .

  . . .

In the present case, the district court erred in granting summary judgment to [the employer] on the severe or pervasive prong of [his] claims because there is sufficient evidence in the record that he subjectively regarded his work environment as abusive, and that his coworkers’ racial harassment was severe or pervasive enough for a reasonable person to find his work environment hostile. The district court did not separately evaluate the subjective and objective prongs of the severe or pervasive test and appeared to proceed solely on the objective prong. Nevertheless, [the employer] argues that [he] did not subjectively perceive a hostile work environment because he stated that [a co-worker’s] use of the n-word was a “term of endearment,” and he only complained of racial harassment in March 2021, “‘saving’ his complaint” for when he faced discipline for failing to use his harness.   . . .  We reject [its] arguments inasmuch as Jones has provided sufficient evidence that he subjectively regarded his work environment as hostile.

As an initial matter, “the intent of the alleged harasser is irrelevant in the court’s subjective prong analysis.”  . . .  That [the plaintiff] perceived that [a particular co-worker] meant his use of the n-word as a term of endearment does not mean that [he] perceived the slur to be inoffensive. And [the co-worker’s] intent “is not a defense under the subjective test if the conduct was unwelcome.”  . . .  [He] provided sufficient evidence that he regarded [the co-worker’s] use of the n-word to be offensive and unwelcome. [He] characterized [that] use of the slur as a “term of endearment” because [it] “said it to [him] as if we say it to each other all the time,” as though the two were friends.  . . .  But he clarified that he was not excusing [the] utterance of the slur as harmless.  . . .  [He] further described the possibility of [his co-worker] calling him the n-word again as a “problem” that was solved when [he] was moved to another work location and was “no longer in [his] face every day.”  . . . . [He] also made clear that he perceived his coworkers’ use of racial epithets to be offensive, and he perceived their conduct to be abusive.  . . . Indeed, by March 2022, [he] felt so abused by his coworkers that he expressed suicidal and homicidal ideation because of stress at work.  . . .

“In addition, the subjective component of the prima facie case does not require that a plaintiff report a hostile work environment.”  . . . So, contrary to [the employer’s] argument, [his] failure to report racial harassment to its human resources before March 2021 does not cut against our conclusion that he provided sufficient evidence that he perceived his work environment as abusive. “A plaintiff can be subjected to [racial] harassment sufficiently severe or pervasive as to constitute a hostile environment and yet, for a number of valid reasons, not report the harassment.”  . . .  For example, [he] testified that he did not immediately report [the] statement because he was afraid his coworkers would retaliate if he reported. He also questioned whether it would be “right” to report the incident, given that it would affect [his co-worker’s] career when [that person] was new to the workforce and, from [his] perspective, possibly unaware of the “mistake” he made in using the n-word.  . . .  Nevertheless, the record shows that [he] did report racial harassment multiple times before March 2021, albeit not directly to [its] human resources. [He] reported the incident with [day shift], on the day shift, to [his manager], presumably resulting in [the] firing. [He] also participated in the [his supervisor’s] November 9, 2020 meeting addressing the instances of harassment against [him] in November 2020. And, after [a co-worker] threw grease on his car, [he] immediately showed [his supervisor] evidence of [that] conduct. So, rather than “‘sav[e]’ his complaint of harassment for the proverbial ‘rainy day,’”  . . . . the record contains evidence that [he] brought his coworkers’ continual racial harassment to his superiors’ attention. At present, [he] has provided evidence, sufficient to preclude summary judgment, that he subjectively regarded his work environment as abusive.

 . . .

 . . . Viewing [his] evidence in the light most favorable to him, [he] experienced a weeks-long period of verbal hostility, . . . The verbal hostility “directly affected the day-to-day conditions of [his] work environment,” . . . so much so that his supervisor,  . . , “had enough” of the harassment and held a meeting to stop it.  . .  The verbal harassment did not stop after the meeting but continued. And, as in Schlosser, the verbal hostility escalated into a physical threat when [a co-worker] threw grease on [his] windshield.  . . .  In addition, [his] coworkers ostracized him for months, subjected him to stereotyping, and called him “boy.” This is clearly enough evidence of severe or pervasive harassment for Jones to submit his racially hostile work environment claim to a jury. Contrary to the district court’s conclusion, [he] does not allege instances of “offensive utterances and social avoidance . . . alone,”  . . .. Rather, he presents evidence of persistent racial harassment that took various forms, from overt verbal harassment, to physical conduct, to persistent stereotyping, to ostracization.

The district court came to its erroneous conclusion because it failed to consider all of [his] evidence of racial harassment, and failed to consider [his] evidence holistically. It erroneously discounted [his] evidence, other than “the use of racial epithets and the incident where [the co-worker] poured grease on his windshield,” id., for two reasons. First, it concluded that [his] evidence paralleled that in Reed v. Procter & Gamble Manufacturing Co., in which we found that a plaintiff’s allegations of an isolated racist gesture and racist remarks did not amount to severe or pervasive harassment when the plaintiff failed to tie his other allegations of harassment, including that he was the “subject of unfriendly treatment from some colleagues,” to his race.  . . .  Second, it concluded that “the majority of [his] claims [we]re simply too vague to support the notion that his coworkers’ conduct was sufficiently severe or pervasive.”

But [his] evidence of ostracization, as well as his evidence that he was subjected to pervasive racial comments, stereotyping, and called “boy,” are fairly considered as contributing to the totality of severe or pervasive racial harassment. The cases on which [the employer] and the district court rely for the proposition that [his] complained-of workplace exclusion did not contribute to a pattern of severe or pervasive racial harassment, particularly Reed, are distinguishable.

The Reed plaintiff complained only of social isolation, not the ostracization that affected his work like in this case.

The district court also erred in removing many of [his] allegations of harassment from the severe or pervasive calculus on the grounds that the evidence was too vague. The court characterized [his] evidence of ostracization, stereotyping, and being called “boy” as insufficiently specific to contribute to the totality of the circumstances of severe or pervasive racial harassment. But we have “noted that when a victim makes allegations of ongoing harassment, the ‘inability to recount any more specific instances goes to the weight of her testimony, a matter for the finder of facts.’”

The Court also found that the plaintiff produced sufficient evidence of retaliation by his co-workers to survive summary judgment.

However, the Court remanded the harassment claim for the court to consider whether the employer had sufficient knowledge of the alleged racial harassment to impose vicarious liability because the trial court had not addressed that issue in its opinion.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Litigation Snares Two Nearby Employers

Last week, the EEOC announced a settlement and one court verdict involving two different nearby employers.  One involved an employee’s religious objections to having his hand biometrically scanned as part of a new payroll system and an award against that employer for more than $585,000 in compensatory damages, lost wages and benefits.  The other involved an $80,000 settlement of an EEOC lawsuit alleging a racially hostile work environment by a Chagrin Falls, Ohio employer. 

In the first case, the EEOC brought suit against a coal company and its parent alleging that a long-time employee had been forced to resign because the employer refused to accommodate his religious beliefs.  In particular, the employee believed that the employer’s new biometric hand scanners – which had been implemented to track employee attendance – constituted the mark of the beast (i.e., the antichrist).  He objected to being subjected to the technology and notified the employer on a number of occasions.  The employer refused to accommodate his religious beliefs and informed him that he would be disciplined and terminated if he refused to scan his hand.    The EEOC alleged that the employee was forced to retire due to the employer’s refusal to accommodate his religious beliefs.

In January, a federal court jury in West Virginia found that the employer violated the employee’s religious beliefs and awarded the employee $150,000 in compensatory damages.  Last month, the federal judge awarded an additional $436,860 in back pay, and front pay.  The Court also enjoined the employer for three years from denying religious objections to the biometric hand scanner and required them to be trained about religious accommodations.

The other case involves allegations of offensive language by the general manager towards African-American employees and less favorable treatment (such as less frequent breaks than white employees).    The EEOC complaint also alleged that an African American supervisor was subjected to a racially and sexually hostile work environment and retaliation when she opposed the mistreatment.  The settlement provides $44,500 to the supervisor and $35,000 to the remaining employees.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Appeals Court: Fire Chief Properly Terminated for Inappropriate Comments

Last week, the Fairfield County Court of Appeals affirmed the termination of a Township Fire Chief for making a racially insensitive joke while still on probation for an earlier, unrelated event.  Mathias v. Pleasant Twp. Bd. of Trustees, 2014-Ohio-3019.   The Court made clear that management can be held to a higher standard of conduct than subordinates and enforcement of an anti-harassment/discrimination policy does not require the existence of a specific victim.  In particular, the Court found that the terminated chief had made a joke in the presence of three white firefighters that he did not have a problem with black people because “everyone should own one” or “everyone should have one.”  One of the firefighters reported it to the Assistant Chief, who mentioned it to a Township Trustee.  Written statements were taken and the Chief was confronted.   He later explained that he and the department’s lone black employee had a friendly and joking relationship where they made jokes with each other about historical racism, including segregated parking, bathrooms and drinking fountains.  The black employee testified as a witness in support of the terminated chief. There was no evidence that anyone had felt offended or harassed by the Chief’s statements or that anyone thought he was a racist.  The Chief also pointed out that other firefighters had made similar statements without any complaint or investigation.  Nonetheless, the Court agreed that the Chief had violated Department policy against making such statements and for engaging in unbecoming and undignified behavior.

While appellant contends that he committed no act pursuant to such section which would justify his termination, we disagree. Appellant admittedly made a racially derogatory comment. While appellant argues that [the sole black firefighter] and other firefighters also made similar jokes, appellant was the Chief of the Fire Department and set the tone and morale for the department as a whole. During the hearing, appellant himself admitted that it was probably not appropriate for him, as the Acting Fire Chief, to make the racial statements that he did.

In addition, the Court agreed that the Chief had “clearly” violated the Department’s anti-harassment/discrimination policy, which could justify dismissal on a first offense – even without the existence of a specific victim.  The policy provided:

 

“316.02 - Sexual, ethnic, racial and religious harassment is an offense first against this department and second an offense against the employee or group of employees. Offense refer to physical, verbal or implied actions that have the purpose or effect of creating a hostile, offensive or intimidating working environment or has an ethnic, racial, religious or sexual basis, or both. Examples would include but are not limited to: physical contact of sexual nature; sexual, racial, ethnic, or religious jokes, comments, insults, audio/visual material, cartoons, innuendoes or personal conduct or mannerisms that could be construed as offensive.”

The Court also rejected the Chief’s procedural arguments about, for instance, the timing of his suspension, consideration of documents about the earlier event which caused him to be placed on probation,  and the conduct of the investigation by the Assistant Chief who was made Acting Chief and ultimately promoted to replace him.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Appeals Court Reinstates $549K Race Discrimination Verdict Against Columbus Employer

Earlier this month, a divided Franklin County Court of Appeals reinstated a $549K jury verdict rendered against a south-side employer in a lawsuit alleging race discrimination, hostile work environment and retaliation and producing evidence about disparaging comments and implied threats by management involving guns.    Smith v. Superior Production LLC, 2014-Ohio-1961 (5-8-14).  The plaintiff had been a production supervisor who requested a transfer in 2008 after his manager (also the son of a company owner and part owner himself) yelled at him and referred to him as the “n-word.”  The plaintiff admittedly never mentioned the n-word incident when he requested the transfer or anytime afterwards until he filed his lawsuit.   However, he claimed (over employer denials) that he had complained about his manager being a racist and the hostile work environment that existed in his former facility.  His transfer was granted, but he was demoted.  Despite his years of experience and seniority, he was one of the first employees laid off (with 60 other employees) during the great recession later that year and was not recalled to work when the economy improved months later.   During the jury trial in March 2013, the jury heard evidence about the use of the “n-word” by five different people (two managers and three co-workers) – out of 250 people who worked in the plant -- sporadically in a 10- year period and how a manager would intimidate black employees by putting a cocked gun on his desk during a meeting in his office.  The employer argued that the evidence was insufficient to show that there was pervasive harassment or different treatment of employees and the trial court determined that the employer was entitled to another trial, but then ultimately granted the employer judgment notwithstanding the jury verdict.  On appeal, the Court of Appeals reversed.

The Court concluded that the trial court erred in granting the JNOV motion because the plaintiff produced sufficient evidence to support the jury’s verdict.  For instance, the Court found that there was sufficient evidence to support the race discrimination in termination claim because the plaintiff had been one of the first employees laid off despite his seniority and experience.  Although the evidence was disputed, there was also evidence that the plaintiff’s racist manager had been involved in selecting employees for layoff by identifying the employees he wanted to keep (which, clearly, did not include the plaintiff).   The Court found the manager’s use of the n-word directly to the plaintiff months before the layoff decision was sufficiently proximate to support the jury verdict.  As explained by the Court:

Constructing the evidence in favor of Smith, we determine that perhaps the most offensive word in the English language was used directly by Smith's supervisor in telling him to clock out and leave. As a result, Smith, no longer willing to work under Holstein, was moved to another facility, demoted in title and pay, and worked on another shift. This same supervisor was involved in the decision to layoff Smith two months later. There was a culture of discrimination at Superior evidenced by the common use of the n-word by both staff and management, including the owners as well as the lack of reprimands for use of the word. Holstein also used a gun to intimidate African-Americans during meetings in his office. . . .

There was evidence presented that only about 60 employees were initially terminated,  . . . There was also evidence that Superior sought to retain employees who could perform multiple jobs and provide the most flexible and skilled labor force. Superior typically tried to push down from the top of the workforce, to layoff only the bottom employees, but this was not the case with Smith. (Tr. Vol. III, at 362.) Smith was the first production employee laid-off and only the eighth employee overall. . . . Viewing the evidence most favorably for Smith, the jury could find that Smith, who was a production supervisor, who had performed every job on the production floor, and had over two decades experience, would not have been terminated but for his race.

The Court also concluded that the trial court erred in granting the JNOV motion on the retaliation claim, even with its higher level of proof.  There was evidence that this same manager may have been involved in the recall decisions and that he had made statements to another black employee in early 2009 disparaging the plaintiff with the n-word.  The employer had contended that the plaintiff had not been recalled because his primary skill was in an area supervised by his prior manager, who he had already refused to work for.  The Court concluded that the plaintiff had a wider skill set than the employer freely admitted and that there had never been any complaints about his work performance.   The Court also concluded that the jury may have found the employer witnesses to not be credible in light of inconsistencies in their testimony and discovery responses.

Further, if the jury believed that Holstein was acting like a racist, then Smith's desire not to be directly supervised by Holstein can be viewed by the jury as not being a legitimate business reason for failing to rehire him, and would further damage Holstein's credibility. This view is especially reasonable since Superior had multiple facilities and shifts in which Smith could work and not be supervised by Holstein. (Tr. Vol. III, at 343.) Superior could also have changed Duane Holstein's position so that he was not a manufacturing manager, an occurrence which happened anyway when Holstein became a safety manager. (Tr. Vol. III, at 317.) Reasonable minds can conclude that the jury properly found that Superior's proffered reasons for failing to rehire Smith were pretextual.

The Court also concluded that the trial court erred in granting the JNOV motion on the hostile work environment claim on the grounds that the use of the n-word was isolated and sporadic and “and merely an offensive utterance, rather than being threatening or humiliating.”

Reasonable minds can easily conclude that Holstein's use of the n-word, directly to Smith, while on the production floor, at the same time telling him to go home, was humiliating.

In any event, the Court also concluded that the employer was not entitled to a new trial – even under an abuse of discretion appellate standard -- and, therefore, reinstated the jury’s verdict (which will undoubtedly be appealed to the Supreme Court).

The dissent agreed with the majority on the impropriety of the JNOV verdict on the hostile work environment claim (based on the use of the n-word by two of the company’s owners), but believed the trial court was correct on the race and retaliation claims and saw no abuse of discretion in granting a new trial on all of the claims.   Among other things, he did not find the manager’s disparagement of the plaintiff two months before his layoff to be proximately related to the decision to lay him off.   He also noted that the plaintiff had been replaced by other black employee.  He also disputed the relevance of the gun evidence since there was no evidence that the manager behaved differently with white employees. He also rejected the retaliation claim because the employer’s explanation – that none of the supervisors requested the plaintiff’s return – did not show that the other supervisors were retaliating.  “While Superior's reason is not particularly fair to Smith, it is a motive other than unlawful retaliation.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Reverses Employer’s Summary Judgment in EEOC Race Harassment Lawsuit Because Defendant Was a Joint Employer of Harassed Employees

On Tuesday, the Sixth Circuit reversed summary judgment for the defendant employer in a racial harassment lawsuit brought by the EEOC under Title VII and §1981.   EEOC v. Skanska USA Building, Inc. Nos. 12-5967 and 12-6236 (6^th Cir. 12-10-13).  In that lawsuit, the EEOC alleged that the employees of a construction subcontractor were subjected to daily name-calling and other harassment by workers on the construction site, were supervised almost exclusively by the general contractor and were subjected to retaliation by the general contractor for complaining about the unlawful racial harassment. The EEOC alleged that the general contractor was a joint employer with the subcontractor of the harassed employees.   The district court granted summary judgment to the defendant general contractor on the basis that it was not the employer of the harassed employees. The Sixth Circuit reversed on the basis that the general contractor was a joint employer of the harassed employees. “Entities are joint employers if they “share or co-determine those matters governing essential terms and conditions of employment.’”

 

Construing the evidence most favorably to the non-moving EEOC, the Court found the evidence showed that the subcontracting employer played a minimal role in employing and supervising the harassed employees.  While it selected, hired and paid the employees, the general contractor supervised them, monitored their performance, removed them from the job site with minimal explanations, and covered them with workers compensation insurance, etc.  The Court rejected the defendant employer’s argument that the subcontractor was required by contract to exercise supervisory authority over its own employees:  “That the terms of C-1’s contract with Skanska envisioned a more active role for C-1 is besides the point.” 

 In a rather direct analysis, the Sixth Circuit explained its reversal as follows:

To determine whether an entity is the plaintiff’s joint employer, we look to an entity’s ability to hire, fire or discipline employees, affect their compensation and benefits, and direct and supervise their performance. Id. Here, Skanska supervised and controlled the operators’ day-to-day activities without any oversight from [the subcontractor’s owner]. As a general matter, Skanska routinely exercised its ability to direct and supervise the operators’ performance. Skanska set the operators’ hours and daily assignments. Skanska assigned the operators’ supervisors. When the operators complained about the conditions on site, Skanska handled their complaints. When the operators had disagreements with their supervisors, Skanska arranged a meeting to discuss the situation. Moreover, Skanska did not consult with [subcontractor’s owner] about the operators’ complaints or their conflicts with Skanska’s supervisors. And when the operators called [the subcontractor’s owner] to ask him to improve conditions at the site, [he] did nothing.

Particular incidents likewise demonstrate Skanska’s control over the operators. As discussed above, Skanska executive Mike Rayburn called a meeting with [two harassed employees] and a  Skanska designated supervisor because “[the buck-hoist operators] were representing Skanska” and the operators “work, you know, under our direction.” No one told [the subcontractor’s owner] about this meeting. Skanska also had [two of the harassed employees] sign a document— typed on Skanska letterhead—entitled “Buck-hoist Operator  Responsibilities.” And Skanska repeatedly removed C-1’s operators from the job site without any challenge from [the subcontractor’s owner].  

The reality is that C-1 was a nonentity on the construction site. That the terms of C-1’s contract with Skanska envisioned a more active role for C-1 is besides the point. Viewed in the light most favorable to the plaintiffs, the record here is enough to support a determination Skanska jointly employed the operators.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Reverses Employer’s Summary Judgment on Racial Hostile Workplace Claim Brought by Pro Se Plaintiff

Yesterday, the Sixth Circuit reversed a Franklin County employer’s summary judgment on a racially hostile workplace claim brought by a pro se plaintiff.   Paassawe v. Action Group, Inc., No. 12-3701 (6^th Cir. 7-17-13).  In this case, the plaintiff alleged, among other things, that he was subjected to verbal taunts and threats by his co-workers and discrimination on account of his race and support of President Obama during the 2008 election.   He claimed he was fired after missing work for a week following a workplace injury.   The Court ruled that the comments made to plaintiff about his support for Obama were not merely politically based, but the evidence also showed the comments were racially motivated because plaintiff was repeatedly referred to as “boy” and he was threatened.  He also showed that the conduct was sufficiently severe and pervasive, particularly when he showed that his complaints about his co-workers comments were not adequately addressed by management.  The Court also found that he adequately proved possible retaliation based on his complaints of harassment and unequal application of the company’s political paraphernalia policy.

According to the Court’s opinion, the company prohibited political paraphernalia in the workplace, but distributed McCain literature and paraphernalia.  By itself, this would not show race discrimination.    However, evidence that management asked him about his “true identity” and how he could afford to drive his nice car on his low wages, called the plaintiff “boy” and threatened him when he complained about the unequal application of the political paraphernalia policy could support a claim for racial discrimination.    The Court also found sufficient proof of retaliation based on differing accounts of the circumstances of his termination, the threatening comments from management about his job, and that he was fired within three months of raising complaints about the racial discrimination and harassment.

After checking the Franklin County and Southern District dockets, I can tell you this is not the plaintiff’s first  pro se rodeo.  After a few other lawsuits against other entities, he also sought and obtained unemployment compensation from this same employer and, with an attorney, pursued a claim for workers’ compensation.    

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Legal Victories Send Message to Unwary Employers

EEOC Wins Jury Verdict in Religious Discrimination Case Where Employees Were Denied a Requested Day Off to Attend a Church Convention.

On October 23, 2007, the EEOC announced a favorable jury verdict of $756,000 in a religious discrimination lawsuit brought in Arkansas federal court against AT&T Inc. on behalf of two male customer service technicians who were suspended and fired for attending a Jehovah’s Witnesses Convention. “The jury . . . awarded the two former employees, Jose Gonzalez and Glenn Owen (brothers-in-law), $296,000 in back pay and $460,000 in compensatory damages under Title VII of the 1964 Civil Rights Act. During the four-day trial, the jury heard evidence that both men had submitted written requests to their manager in January 2005 for one day of leave to attend a religious observance that was scheduled for Friday, July 15, to Sunday, July 17, 2005. Both men testified that they had sincerely held religious beliefs that required them to attend the convention each year. Both men had attended the convention every year throughout their employment with AT&T -- Gonzalez worked at the company for more than eight years and Owen was employed there for nearly six years.”

Title VII requires -- at 42 U.S.C. § 2000e(j) -- that an employer, short of "undue hardship," make "reasonable accommodations" to the religious needs of its employees. In particular, for purposes of Title VII’s prohibition against discrimination on the basis of religion: “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

Title VII’s “undue hardship” test, however, has been given a different meaning by the Supreme Court than the “undue hardship” test contained in the ADA. In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that an employer attempted to reasonably accommodate the religious objections of an employee to working on his Sabbath by permitting him to find a replacement and switch shifts. However, the Court held that the employer was not required to violate the seniority provisions of the collective bargaining agreement by giving the religious employee the preference of shift assignments over more senior employees because doing so would constitute an undue hardship.

“We agree that neither a collective bargaining contract nor a seniority system may be employed to violate the statute, but we do not believe that the duty to accommodate requires TWA to take steps inconsistent with the otherwise valid agreement. Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. . . . TWA would have had to adopt the latter in order to assure Hardison and others like him of getting the days off necessary for strict observance of their religion, but it could have done so only at the expense of others who had strong, but perhaps nonreligious, reasons for not working on weekends. There were no volunteers to relieve Hardison on Saturdays, and to give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath.”

The Supreme Court also rejected the argument that the religious employee could be given a four-day instead of a five-day shift because that would have left the employer short-handed one day each week: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship. Like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion.”

The full press release is available at http://www.eeoc.gov/press/10-23-07.html.

EEOC Settles Racial Harassment Suit Involving Hangman’s Nooses

On October 25, 2007, the EEOC announced that it had settled a discrimination lawsuit for $290,000 and obtained “significant injunctive relief against Helmerich & Payne International Drilling Co. (H & P) on behalf of African American men who were subjected to a racially hostile work environment on an oil rig. H & P is an energy oriented company engaged in contract drilling primarily in the United States, South America, and Africa. The racial harassment in the case including hangman’s nooses displayed on Rig 108, derogatory racial language, and race-based name calling, all of which was directed at black employees. In addition to the nearly $300,000 in compensatory damages to be apportioned among the seven class members, the two-year consent decree (filed in Birmingham, Alabama) settling the case (EEOC v. Helmerich & Payne International Drilling Co., Case No. 3:05-CV-691) contains the following injunctive relief:

• Enjoins H & P from engaging in racial harassment or retaliation;


• Requires that H & P conduct anti-discrimination training and post a notice about the settlement;


• Requires that H& P redistribute to the workforce its policies prohibiting racial harassment; and


• Requires reporting certain complaints of harassment or retaliation to the EEOC for monitoring.

A full copy of the press release can be reviewed at http://www.eeoc.gov/press/10-25-07.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.