When an individual claims to have been racially harassed by co-workers, he or she must show that the employer was negligent either in discovering or remedying the harassment.  An employer can avoid liability for co-worker harassment if it takes prompt and appropriate remedial action that is likely to prevent the harassment from recurring.  Recently, the 7th U.S. Circuit Court of Appeals analyzed specific actions taken by a company after a noose was found hanging in a workplace, and found those actions to have been sufficient to uphold summary judgment in the company’s favor.  Porter v. Erie Foods International, Inc., 7th Cir. No 08-1996, August 7, 2009.

Tremeyne Porter was the only African-American working on the third shift in Erie Foods’ Rochelle, Illinois facility.  During his work shift on August 12, 2004, Porter saw a noose, made out of white nylon rope, hanging from a piece of machinery.  An on-site supervisor, Santos, directed another employee to take down the noose, and then discussed the matter with Porter.  She asked Porter if he knew who was responsible, but he denied knowing who the perpetrator was.  Santos then tacked the noose to a bulletin board in her office, which was within sight of individuals passing that office.  She later testified that she did so to remind her to follow up on the issue. 

Early the next morning, Santos followed up with the first shift supervisor – asking if he had any information about the noose – and then informed her own supervisor (Jacobs) and a member of the human resources department (Goffinet) about the matter.  Concerned, Goffinet immediately spoke to his own supervisor about the matter.  That evening, Goffinet held a group meeting with Santos, Porter, and the entire third shift, stating that workplace harassment would not be tolerated, and reiterating the company’s anti-discrimination policy.  Subsequently, Goffinet spoke privately with nine of the 15 third-shift workers, and held an extensive discussion with Porter.  Porter told Goffinet that he “would not say” who made the noose, because he didn’t want anyone to be fired. 

Around this same time, another co-worker, Alverez, showed a noose to Porter and to some other employees; Alverez then stated to Porter that if Porter showed the noose to anyone, he would “look for him,” which Porter interpreted as a threat to him and to his family.  Shortly after, Goffinet followed up with Porter, asking for additional information on the reported harassment.  During that meeting, Porter mentioned that he had been threatened by another employee, but would not identify that person.  Goffinet then asked whether Porter wanted to change shifts.  Porter declined the offer.  Santos also continued to follow up with Porter during subsequent shifts, asking whether he knew who hung the noose, and asking first and second shift supervisors if they had obtained any further information.

On August 14, Porter filed a police report about the nooses, including co-worker names, but stated that he did not want the police to visit the workplace or the individuals – he simply wanted the harassment to stop.  On August 16, a locker fell on Porter while he was changing into his work clothes.  Porter was hit by the falling locker, but suffered no injury.  After Porter reported the incident to Santos, Goffinet had the lockers bolted to the wall within a day.

On August 19, Porter quit his job.  He ultimately filed a lawsuit alleging race-based harassment, constructive discharge, and retaliation.  The district court granted summary judgment in Erie’s favor.  That decision was upheld on appeal by the Seventh Circuit, based largely on the actions taken by Erie during the brief period of Porter’s employment. 

Because Title VII is not a “strict liability” statute, an employer can defend against allegations of co-worker harassment by showing prompt and effective response to reports of such harassment.  In this case, the Court determined that the steps taken by Santos and Goffinet show that they took the issue seriously and made a reasonable effort to bring the harassment to an end.  (However, the Court also labeled Santos’ unfortunate placing of the noose on her bulletin board as “ill advised,” and found that it may have indicated a “lack of recognition of the powerful message of racial hatred that a noose evokes.”)  The facts that both of these managers informed their own supervisors of the incident, made attempts to find out who was responsible, reminded employees of company anti-discrimination policies, and followed up with Porter, formed the basis of prompt and effective remedial action sufficient to defend against Porter’s claims of co-worker harassment.  Further, because an employee has a duty to reasonably “avail [himself] of the employer’s preventive or remedial apparatus,” Porter’s failure to fully report or cooperate in the investigation of the harassing incidents undermined his claims.  According to the Court, an employee’s subjective fears of confrontation or retaliation do not alleviate the duty to alert an employer to alleged harassment.

The important point for employers in this case is the Court’s statement that “In assessing corrective action, our focus is not whether the perpetrators were punished by the employer, but whether the employer took reasonable steps to prevent future harm.”  Those “reasonable steps” will differ, depending on the specific facts of the situation being addressed.  However, the actions taken by the company in this case should stand as a minimum checklist of a “prompt and effective” reaction to incidents of co-worker harassment.  


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