Fifth Circuit Reverses a Jury Verdict in a Racial Harassment Case Because the Employer Took Prompt Remedial Action
When one employee harasses another employee on the basis of sex, race, or another protected classification, the employer is not automatically liable for the misconduct of the employee. Instead, vicarious liability attaches only if the employer knows (or should have known) about the harassment and fails to take prompt remedial action. The Fifth Circuit applied this rule to a racial harassment case in Williams-Boldware v. Denton County, No. 13-40044 (5th Cir. Jan. 31, 2014) (to be published).
Williams-Boldware, who is black. was an assistant district attorney in Denton County. While discussing a case involving a black woman, a co-worker named Cary (a self-described "redneck") said "that the woman’s actions 'made him understand why people hung people from trees' and also made him 'want to go home and put on his white pointy hat.'" Williams-Boldware became upset and left. She reported the incident to another co-worker, who in turn reported the incident to senior members of the department. The department conducted an inquiry, during which Williams-Boldware was allowed to meet with Cary at her request. Cary was then reprimanded and sent to diversity training.
A few months later, Williams-Boldware heard Cary make a comment about a "boombox," followed by the statement that "I better watch what I say or else I’ll have to take another one of those classes." She reported this incident, along with another incident in which a co-worker named Rentz called her a "troublemaker." After an investigation, the department decided to take no further action against Cary, but sent Rentz to diversity training even though it determined that the evidence was "inconclusive" as to whether his comment was racially motivated.
Williams-Boldware filed suit against Denton County, claiming racial harassment in violation of Title VII. The jury found in her favor and awarded various categories of damages. The district court threw out all of the damages except for an award of $170,000.00 for mental anguish. Denton County appealed.
The Fifth Circuit observed that "Employers are not required to impose draconian penalties upon the offending employee in order to satisfy this court’s prompt remedial action standard" and that "where the offending conduct is infrequent or isolated, a reprimand may qualify as a prompt remedial measure." The court also noted that an important consideration in assessing remedial actions is whether the offensive activity ceased.
Applying those principles, the Fifth Circuit found that Denton County took prompt remedial actions with respect to Williams-Boldware's complaints. With respect to the original incident involving Cary, the Fifth Circuit stated:
Denton County’s response to Williams-Boldware’s initial complaint could not have been more prompt. Less than twenty-four hours after the complaint, Williams-Boldware was in a meeting with the DA and the First Assistant DA. During this meeting, she was afforded the opportunity to fully explain what she experienced. The DA’s Office’s leadership asked for her input on an appropriate response. She requested a meeting with Cary and her request was granted. Shortly thereafter, Denton County officials verbally reprimanded Cary and required that he attend a diversity training.
The court noted that the offensive conduct ceased after Denton County took those steps:
Moreover, the evidence presented did not demonstrate that any racially harassing conduct persisted after Cary was reprimanded and compelled to attend a diversity training class. Williams-Boldware argues that Cary’s “boombox” comment demonstrated that he did not take the diversity training seriously. Whether Cary took the training seriously is not entirely determinative. Instead, the relevant inquiry is whether Cary harassed Williams-Boldware because of her race subsequent to Denton County’s reprimanding him and requiring that he attend diversity training. Williams-Boldware presented no evidence that Cary continued making similar comments nor did she show that other employees harassed her because of her race. (Citation omitted).
The court reached the same conclusion with respect to Rentz:
In fact, Denton County compelled John Rentz to attend a diversity training class even though the alleged “troublemaker” comment was deemed “inconclusive” with respect to whether it was racially harassing. Also, there was no evidence that Rentz made similar comments subsequent to his compelled diversity training.
Accordingly, the court reversed the jury verdict and ruled that Denton County was entitled to judgment as a matter of law.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes