One of the more difficult problems for employers is harassment by unknown co-workers. The law was designed for harassment by supervisors. It functions not so well when the harassment is caused by co-workers. In Tolliver v. YRC, Inc., No. 17-10294, 2018 US LEXIS 17806 (5th Cir. 6/28/2018), African-American workers were harassed in various ways for over 15 years. The black workers encountered racist graffiti, nooses, and other incidents. The district court refused to allow evidence of incidents which occurred beyond the 300 day limitations period. So, the court only addressed two incidents, a noose left in YRC facilities and racist graffiti left on a YRC truck. It was not known who committed these acts.
The court found these two incidents were not sufficiently pervasive or severe to amount to a hostile work environment. The court noted that the plaintiffs did not contend that the two incidents were directed toward them. And, said the court, “for the most part,” the plaintiffs learned of the two incidents second-hand.
But, even if the two incidents were sufficiently severe or pervasive, management took prompt and remedial action. The company posted a $25,000 reward for information about the incidents. It interviewed hundreds of employees. It hired security guards, and it contacted law enforcement. The employer also provided weekly reminders about its non-discrimination policies. The employer did not discipline anyone, because the perpetrators were not found.
As the court added, Title VII is not a behavior code. It prohibits discrimination. Essentially the court is saying Title VII does not require the employer to deeply investigate acts of apparent racism. Most courts require reasonably swift action, and not much more than asking employees if they know who committed the acts. This decision is in line with those prior authorities. The Fifth Circuit affirmed the grant of summary judgment. See the decision here.