Reprinted from the February 15, 2007 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

"Unusual" Harassment Complaint Requires
Usual Management Response

An employee in the majority — in other words, Caucasian — might have a tough time convincing you that a minority employee is harassing him/her. But the employee shouldn’t have to convince you; it’s your job to investigate, no matter what type of harassment is being alleged.

UNCONVINCING COMPLAINT

Every day Dania Taylor, who was African-American, made offensive comments to Sandi Sherman about “white people,” including calling her a “stupid white girl.” Sherman eventually complained to their manager, Livona Curtis.

“Dania shouldn’t be saying things like that,” said Curtis, who was also African-American. “Let’s keep this between you and me until I can look into this further.”

Weeks later, nothing had changed. Sherman tried to meet with Curtis again, but it took another few weeks before Curtis found the time to sit down with her.

“I can’t take it anymore. It’s so hard for me to get my work done with Dania harassing me all the time, mocking the way I dress and talking about my ‘black butt.’ Can I please be transferred to another department?”

“A transfer? You don’t need a transfer. You need to lighten up and learn how to handle interpersonal squabbles. And learn how to take a compliment about your butt!”

Sherman was upset about Curtis’s reaction. “My complaints must not matter because I’m white,” she thought. Sherman took a leave of absence for emotional distress. Even though she was eventually cleared to return to work, she never did. Instead, she resigned. Her race discrimination claim against Curtis, Taylor, and the company followed.

CONVINCING ARGUMENT IN COURT

A court held that Taylor’s race-based comments, aimed at Sherman for nearly a year and a half, created a sufficiently hostile work environment for the employee. Even though some of the comments were intended as compliments (e.g., telling Sherman that she had a “black butt”), that had no legal significance because Sherman did not need to show that Taylor intentionally harassed or discriminated against her. The fact remained that Taylor made racially offensive comments directly to Sherman, and the employee reported those comments to Curtis, who failed to correct the situation. The court allowed Sherman’s claim to proceed.

MANAGER’S MISSTEPS

The court gave Sherman’s case the go-ahead because of Curtis’s poor response to her complaints.

Misstep #1: She discouraged Sherman from voicing her complaints to a higher authority.

Misstep #2: She failed to follow through with an investigation.

Misstep #3: Not only did she fail to follow up with the employee, but she also put off meeting with her about other complaints.

Misstep #4: She put the blame squarely on Sherman’s shoulders. Even if it were true that Sherman was over-sensitive and Taylor’s comments did not amount to harassment, Curtis could not make that call without conducting an investigation.

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