What Not to Do in a Hostile Work Environment Case

A recent decision, Boggs v. Die Fliedermaus, d/b/a Le Bar Bat, 2003 WL 22299315 (S.D.N.Y. 10/07/03) (Sweet, D. J.), offers many lessons for employers about what to do, and not to do, to position themselves for a successful summary judgment motion in a hostile work environment case.

This dispute has an extensive and tortured history. The plaintiffs in Boggs were hostesses at Le Bar Bat, a well-known New York City bar and restaurant. One of the Defendants, Patrick Kelly, the Director of Banquets and Public Relations, had earlier been charged with, and convicted of, federal crimes of obstruction of justice and witness tampering for trying to have witnesses lie about events. Defendant Larry Cerrone, the General Manager, was alleged to have referred to three of the African-American plaintiffs as “dark, light, and semi-sweet chocolate,” and when they worked nights together, he referred to the shift as “chocolate night”. When one of these plaintiffs complained, he apologized, but continued thereafter to refer to that employee as “you people.” Cerrone was also accused of speaking to one of the plaintiffs in Ebonics for 2 weeks. Another employee said Cerrone frequently made comments of a sexual nature to her and engaged in unwanted physical contact, like hugging, kissing, and rubbing her shoulders, leading her to quit her job.

How the Court Ruled

The court denied the employer's motion to have the hostile work environment claims dismissed. In doing so, the court noted that the existence of racial harassment in a hostile work environment case is a mixed question of law and fact, and, as such, especially well-suited for jury determination. The employer had argued, among other things, that it had a meeting to ask employees if they had complaints, and no one made complaints at that time. The court found this kind of conduct too little, too late, noting that “at no time during the plaintiffs' employment did Le Bar Bat distribute an anti-racial harassment policy, conduct sensitivity training, or discipline any of the defendants for racial and sexual misconduct … When evidence creates an issue of fact as to whether the employer's action is effectively remedial and prompt, summary judgment is inappropriate.”

What We Can Learn

The case offers a tutorial for employers on appropriate steps to take to avoid liability in hostile environment cases. These lessons serve as a checklist for employers in the post Faragher-Ellerth landscape.

Lesson one is that employers should not tolerate any workplace bantering or joking — by anyone — relating to sex or race, or any of the other unlawful categories. This is so even though some employees in the targeted protected category acknowledge that they took the remarks to be joking, and not serious. Determining whether workplace harassment was severe or pervasive enough to be actionable depends on the totality of the circumstances, but that issue easily becomes a question of material fact, thereby precluding summary judgment for an employer, so the employer must make every effort to bar any such conduct.

Lesson two is that the employer should clearly establish and disseminate its policy against such conduct, before events occur, so that all managers and otherwise familiarize employees with it.

Lesson three is that the employer should establish a procedure for complaining about such conduct, let employees know that they will be protected from retaliation for complaining about such conduct, and actually implement this policy and procedure.

Lesson four is that the general abuse excuse, ie, the manager was abusive to all employees, regardless of the protected category (also known as the “equal opportunity harasser” defense), does not work. In fact, it exacerbates the claims by each group. For example, evidence of racial harassment can be used by a plaintiff to bolster his or her own claim of sex-based hostile working environment, and vice versa.

Lesson five is that even if an employee is not present when racist comments are made, that employee is not barred from relying on such comments to support his or her own claims of hostile work environment discrimination.

Lesson six is that when there is a violation of the employer's policy against such discrimination, the employer must promptly investigate those claims, and take appropriate action against the perpetrator, in accordance with the mandates of Faragher-Ellerth.

Lesson seven is that all these rules hold true even if the employer has a culturally diverse work force and takes certain actions, like permitting employees to work in ethnic clothing, and placing minorities in prominent positions, like hostess, to provide patrons with their first impression of the establishment.

Conclusion

Employers that learn these lessons can hopefully prevent hostile work environments and any claims that might flow from them and will, in any event, better position themselves to succeed on summary judgment.

A recent decision, Boggs v. Die Fliedermaus, d/b/a Le Bar Bat, 2003 WL 22299315 (S.D.N.Y. 10/07/03) (Sweet, D. J.), offers many lessons for employers about what to do, and not to do, to position themselves for a successful summary judgment motion in a hostile work environment case.

This dispute has an extensive and tortured history. The plaintiffs in Boggs were hostesses at Le Bar Bat, a well-known New York City bar and restaurant. One of the Defendants, Patrick Kelly, the Director of Banquets and Public Relations, had earlier been charged with, and convicted of, federal crimes of obstruction of justice and witness tampering for trying to have witnesses lie about events. Defendant Larry Cerrone, the General Manager, was alleged to have referred to three of the African-American plaintiffs as “dark, light, and semi-sweet chocolate,” and when they worked nights together, he referred to the shift as “chocolate night”. When one of these plaintiffs complained, he apologized, but continued thereafter to refer to that employee as “you people.” Cerrone was also accused of speaking to one of the plaintiffs in Ebonics for 2 weeks. Another employee said Cerrone frequently made comments of a sexual nature to her and engaged in unwanted physical contact, like hugging, kissing, and rubbing her shoulders, leading her to quit her job.

How the Court Ruled

The court denied the employer's motion to have the hostile work environment claims dismissed. In doing so, the court noted that the existence of racial harassment in a hostile work environment case is a mixed question of law and fact, and, as such, especially well-suited for jury determination. The employer had argued, among other things, that it had a meeting to ask employees if they had complaints, and no one made complaints at that time. The court found this kind of conduct too little, too late, noting that “at no time during the plaintiffs' employment did Le Bar Bat distribute an anti-racial harassment policy, conduct sensitivity training, or discipline any of the defendants for racial and sexual misconduct … When evidence creates an issue of fact as to whether the employer's action is effectively remedial and prompt, summary judgment is inappropriate.”

What We Can Learn

The case offers a tutorial for employers on appropriate steps to take to avoid liability in hostile environment cases. These lessons serve as a checklist for employers in the post Faragher-Ellerth landscape.

Lesson one is that employers should not tolerate any workplace bantering or joking — by anyone — relating to sex or race, or any of the other unlawful categories. This is so even though some employees in the targeted protected category acknowledge that they took the remarks to be joking, and not serious. Determining whether workplace harassment was severe or pervasive enough to be actionable depends on the totality of the circumstances, but that issue easily becomes a question of material fact, thereby precluding summary judgment for an employer, so the employer must make every effort to bar any such conduct.

Lesson two is that the employer should clearly establish and disseminate its policy against such conduct, before events occur, so that all managers and otherwise familiarize employees with it.

Lesson three is that the employer should establish a procedure for complaining about such conduct, let employees know that they will be protected from retaliation for complaining about such conduct, and actually implement this policy and procedure.

Lesson four is that the general abuse excuse, ie, the manager was abusive to all employees, regardless of the protected category (also known as the “equal opportunity harasser” defense), does not work. In fact, it exacerbates the claims by each group. For example, evidence of racial harassment can be used by a plaintiff to bolster his or her own claim of sex-based hostile working environment, and vice versa.

Lesson five is that even if an employee is not present when racist comments are made, that employee is not barred from relying on such comments to support his or her own claims of hostile work environment discrimination.

Lesson six is that when there is a violation of the employer's policy against such discrimination, the employer must promptly investigate those claims, and take appropriate action against the perpetrator, in accordance with the mandates of Faragher-Ellerth.

Lesson seven is that all these rules hold true even if the employer has a culturally diverse work force and takes certain actions, like permitting employees to work in ethnic clothing, and placing minorities in prominent positions, like hostess, to provide patrons with their first impression of the establishment.

Conclusion

Employers that learn these lessons can hopefully prevent hostile work environments and any claims that might flow from them and will, in any event, better position themselves to succeed on summary judgment.