How swift response to racial slurs and graffiti defused a discrimination claim

You have an employee handbook, an anti-harassment policy, training, the whole nine.

But, sometimes, notwithstanding your best efforts to create a positive, respectful workplace, you receive a complaint from an employee who claims to be the victim of harassment based on [insert protected class].

All the prophylactic measures you’ve already installed mean nothing unless you respond to that complaint appropriately.

See how one company did it right, after the jump…

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A target of discrimination.

In Muhammad v.¬†Caterpillar, Inc., the plaintiff encountered both racial and homophobic slurs — really bad ones.

However, each time he complained to management, the company responded. The Seventh Circuit Court of Appeals opinion cites several examples. Here are a few:

In the first incident, a coworker called Muhammad a “black nigger.” Muhammad complained to human resources. After the complaint, that employee never made any further racial comments to Muhammad. A different coworker stated that he did not like Muhammad’s “black faggot ass,” and Muhammad reported the statement to his supervisor, Kipp Edwards, who brought the complaint to human resources. Muhammad had no subsequent problems with that employee.

Graffiti London.jpgUnfortunately, Mr. Muhammad not only dealt with slurs, but also terrible, hurtful graffiti. But, as graffiti went up and Mr. Muhammad complained, the company responded quickly:

Muhammad reported the graffiti to Edwards on August 11. Edwards contacted the shift supervisor, Brad Johnson, and the labor relations representative, Melissa Schwoerer, and he immediately contacted Nu-Air–a third-party provider of painting services–to have the graffiti painted over. Similar graffiti reappeared on August 14, and Muhammad spoke with Edwards and also discussed the matter with Johnson directly who was present at the shift meeting. That evening, Edwards discussed with Muhammad that he should follow the chain of command in submitting complaints and should inform Edwards and then Edwards would communicate the information to Johnson. Edwards had Nu-Air repaint the walls again after that complaint.

Around that time (though we cannot tell precisely when), Edwards addressed the graffiti problem further by discussing it with all of Muhammad’s coworkers at a shift meeting. When more graffiti appeared on August 30, Edwards once more had the walls repainted, and each person on Muhammad’s line was individually warned that anyone caught defacing the walls would be fired immediately. No more graffiti appeared.

Fast and reasonable, the company responds.

It was Caterpillar’s nimble response to each complaint from Mr. Muhammad that helped it prevail when Mr. Muhammad eventually asserted a hostile work environment claim. Ain’t that right Seventh Circuit:

[A]nother more fundamental obstacle blocks Muhammad’s claim that Caterpillar is liable for sexual and racial harassment: Caterpillar reasonably responded to Muhammad’s complaints….After Muhammad reported to Caterpillar his coworkers’ offensive comments and the company responded, only one of the coworkers made another similar remark….As for the graffiti, Caterpillar responded quickly each time Muhammad reported it, and it soon stopped the problem permanently.

In sum, Caterpillar took reasonable efforts to ensure that the harassment did not repeat itself. And even though Mr. Muhammad had to endure this opprobrious…

*** Googles “opprobrious” — swish! ***

…behavior multiple times, each time the company responded reasonably. The response doesn’t have to be perfect; just reasonable.

Employer takeaways.

So, when an employee comes to you with a complaint of harassment, start by taking it seriously. Then fully investigate it. (Are your ears burning, Roger Goodell?). Consider using an outside investigator. (Now, I’m just twisting the knife). Then take reasonable action designed to end the harassment.

And even if, after your investigation, you conclude that there was no wrongdoing, remind all those involved about your anti-harassment policy.

Image: “Graffiti London” by Brocco – originally posted to Flickr as [1]. Licensed under CC BY-SA 2.0 via Wikimedia Commons.

  • william_brogley

    Eric, I did not read the whole opinion, but wouldn’t a reasonable investigation find the source of the graffiti (or the elevator tape) and terminate the employee (in both cases)?


    • Hi Bill.

      I don’t believe that Caterpillar ever found the source of the graffiti. Had they found the source(s), I assume they would have terminated the employee(s).


  • What this article should be titled: “Diffusing Hostile Environment: How Zone Defense Skirted Justice.” The issue wasn’t whether then environment was hostile, only whether it could be legally proven. The unfortunate fact is that beleaguered victims don’t understand the nature of discriminatory “team play” at work, and miss opportunities to investigate, document and link small but important events. They are not skilled at internal environmental scan, spotting clues, and the collection of subtleties as evidence of the crime in progress. On the other hand “The Company” is well studied in the art of diffusing responsibility and accountability for the hostile environment, and providing “warnings” to their majority employees that may actually constitute strategic advice that facilitates legally sustaining hostilities. Such minority employees allow “The Company” a presumption of innocence, which is a psychological mistake, putting themselves at a cognitive disadvantage which later proves fatal to their case. By assuming at the start that overt acts of hostility are merely isolated acts of individual instead of early warning indications of team complicity and treating them as single skirmishes in an ongoing war, the employee leaves gaps in their record, and may even behave in a manner that is not conducive to the establishment of even a colorable case, let alone a winning case. Mr. Muhamud did well in getting as far as he did. Between the guerilla warfare tactics of the employees, the fine corporate legal staff at Caterpillar and the rigorous demands of discrimination law, Mr. Muhammud and most similarly beleaguered victims have little chance of success. The response of Caterpillar resulted in the equivalent of a finding of “not guilty” rather than “innocent.”