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The Employer Handbook Blog
“The Cliques Aren’t Going Anywhere” Is Not a Defense to a Hostile Work Environment Claim
An employer investigated a racial harassment complaint, offered a transfer, and watched the harassment continue. A federal appeals court just sent the hostile work environment claims to a jury.
TL;DR: A Black registered nurse from Ghana alleged that Hispanic co-workers mocked her accent and African food, made racial slurs, and expressed preferences for Filipino employees over Black ones. Her employer investigated, but the investigation was riddled with problems: missing notes, excluded corroborating statements, and a supervisor who told the employee “the cliques were not going anywhere.” The Fifth Circuit reversed summary judgment on the Title VII and Section 1981 hostile work environment claims and remanded for trial. All other claims failed.
Accent Mockery, Racial Slurs, and a Preference for Filipino Employees
The employee, a Black registered nurse born in Ghana, began working at a Texas hospital system in March 2017 and was immediately placed on a 90-day probationary period. Starting in April 2017, she alleged, Hispanic nurses in her unit mocked her accent and African food, commented that Black employees “play the race card,” and openly expressed preferences for Filipino employees over Black ones. A Black co-worker in the unit alleged similar treatment, including being told to stay twelve feet away due to his race and being reassigned away from patients who didn’t want a Black nurse. The employee reported the harassment to multiple supervisors. The Fifth Circuit reversed summary judgment on the Title VII and Section 1981 hostile work environment claims and remanded for trial, affirming summary judgment on the discrimination, retaliation, and ADA claims.
The harassment allegedly occurred almost every shift. The employee testified that it impaired her work and made her feel “less than human.” Counseling records documented that she was distressed, traumatized, and afraid of being harmed. That evidence, viewed in the light most favorable to the plaintiff, was enough for the court to find a genuine dispute about whether the harassment was sufficiently severe or pervasive to alter the conditions of her employment.
The Investigation That Wasn’t
The employer argued it had done the right thing: management investigated promptly, interviewed employees, coached nurses who made discriminatory comments, and offered the employee a transfer to a different unit. Under Title VII and Section 1981, an employer that takes prompt remedial action reasonably calculated to end the harassment can avoid liability on a hostile work environment claim.
The court wasn’t convinced. The plaintiff pointed to a list of problems with the investigation: discrepancies in the investigators’ testimony, a missing investigation file, interview notes the investigators claimed to have taken but never produced in discovery, a Black unit employee who wasn’t interviewed despite one investigator saying otherwise, corroborating statements left out of the investigation summary, and the failure to let the employee and her co-worker review or sign their own interview statements. Most damaging: one of the investigators told the employee that “the cliques were not going anywhere.” The harassment continued after the investigation closed. That evidence, the court held, was enough to create a genuine dispute about whether the employer’s response was reasonably calculated to end the harassment.
Three Things Worth Auditing Before the Next Harassment Complaint Lands
An investigation that looks thorough on paper but falls apart in discovery may be worse than having no investigation at all. The problems in this case are avoidable with some process discipline.
Undocumented investigations create a paper trail for plaintiffs, not employers. The investigators here claimed they took notes and maintained an investigation file. Neither materialized in discovery. If your HR team conducts harassment investigations, they need to generate and preserve contemporaneous written records of every interview, every finding, and every remedial step. Verbal investigations that can’t be reconstructed may not protect you.
Closing out a harassment investigation by telling the complainant the conduct will continue is hard to walk back in litigation. This was perhaps the most damaging piece of evidence in the case. Prompt remedial action must be “reasonably calculated to end the harassment,” and that standard is hard to meet when your investigator tells the victim the conduct will continue. Train investigators to communicate findings carefully.
A transfer offer may not satisfy the employer’s remedial obligation. The employer offered the employee a transfer to a different unit. She declined. That fact didn’t insulate the employer from liability here. The transfer offer came at the end of an investigation that couldn’t produce its own notes or files in discovery. In that context, offering to relocate the complainant rather than address the source of the harassment wasn’t enough to avoid trial.
Hostile work environment liability doesn’t hinge on whether the employer did something in response to a complaint. It hinges on whether what the employer did was reasonably calculated to actually stop the harassment. Those are different questions, and courts are paying attention to the gap between them.