The 10th Circuit offers lessons about racial harassment claims

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Continuing a long-term trend, race discrimination claims were the most frequently filed charge with the Equal Employment Opportunity Commission during fiscal year 2007.
“Corporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effective,” EEOC Chairwoman Naomi C. Earp said in releasing the agency’s 2007 job bias charge statistics.
The recent 10th Circuit decision in Tademy v. Union Pacific Corp. (No. 06-4073, 4/1/08), offers helpful lessons about the proper handling of claims of a racially hostile work environment.
Ranee Tademy, a black switchman and brakeman, worked for Union Pacific from 1979 until 2003. The problems for Tademy started during 1996 and 1997 when racial slurs were etched on his locker. That same year he found two racist cartoons posted on a company billboard.
During 1998 and again during 2000, Tademy saw racial epithets scrawled on a company restroom wall. During 1999, a white co-worker referred to a black supervisor using a racially derogatory term while in Tademy’s presence.
Tademy reported each of these incidents to company management. Union Pacific removed the offending locker and restroom graffiti, but never conducted an investigation concerning their source.
During January 2001, after reporting to work five minutes late, Tademy’s supervisor asked him in the presence of other employees: “What time does the job go to work, boy?” Offended by the use of the term “boy,” Tademy reported this incident to another manager and phoned the company employee hotline.
The company placed the supervisor on 30-days paid leave and required him to attend a diversity class, but allowed him to conduct two EEO training sessions.
Tademy alleged the discipline against the supervisor was ineffective, and that employees later joked, “If you want a paid vacation, all you have to do is call (Tademy) a boy.”
Tademy filed a race discrimination charge during June 2001.
While the charge was pending, an employee sent a racially offensive e-mail to co-workers. The employee was terminated, but reinstated about six months later. During 2003, Tademy was selected for random drug testing for three consecutive weeks.
On July 4, 2003, he allegedly became ill when he saw what appeared to be a hangman’s noose suspended from a large industrial wall clock in the railroad yard. A worker admitted to placing the knotted rope over the clock, but claimed he placed it there so he would not forget to take it home to use assisting his son moving. That employee was terminated, but was reinstated a year later.
Tademy subsequently retired on disability, suffering depression, post-traumatic stress disorder and anxiety. After retiring, Tademy filed a race discrimination charge and sued for racial discrimination under Title VII and Section 1981.
The district court granted summary judgment in favor of Union Pacific, ruling that portions of Tademy’s claims were time-barred. As for those incidents that occurred within the statutory period, the court held they were not sufficiently severe and pervasive to create a hostile environment.
On appeal, the 10th Circuit reversed the district court. It took the district court to task on the noose incident, stating it improperly adopted lock, stock and barrel the co-worker’s explanation.
Granting all inferences in favor of Tademy, the 10th Circuit said that in light of potential implausibilities in the co-worker’s story, a jury could find the action stemmed from racial animus.
Several lessons can be taken from the court’s reversal in this case.
First, although acts of alleged discrimination are barred if not lodged with the EEOC within 300 days of occurrence, hostile environment claims are an exception to this limitation period. A series of separate acts, such as those seen in this case, can collectively constitute one unlawful employment practice.
Second, whether incidents are sufficiently severe or persuasive as to constitute a hostile environment under Title VII are gauged on a sliding scale.
In Tademy, the court held that whether a hostile environment exists turns, “not only on the number of incidents, but also the severity of incidents.” The court noted that although Tademy may not have suffered racism daily, the severity of the evidence made it sufficient to support a finding of a hostile environment.
Third, offensive acts need not be committed by the same actor to give rise to a hostile environment. The court rejected the argument that Tademy’s claim could not survive summary judgment because he could not show the same actors caused the harassment.
Finally, thorough investigation of racially hostile incidents is critical.
The court in Tademy reminds employers that the difficulty of identifying culprits, as with the graffiti reported by Tademy, does not mean the company “acted reasonably” by not trying. Whether an employer’s remedial response to alleged racial harassment is adequate depends on whether it is “reasonably calculated to end the harassment.”
Whether the allegations are racial, sexual or based on some other protected classification, remembering these lessons can result in more positive outcomes for all involved.
Christie Ryan McCall is an attorney at Holland & Hart LLP. She can be reached at crmccall@hollandhart.com.