EEOC-Initiated Litigation - 2022 Edition

54 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP c. Race-Based And Other Forms Of Harassment Although the #metoo-generated headlines and resulting litigation have captured much of the attention relating to harassment litigation over the past few years, sex discrimination harassment is, of course, not the only type of harassment that the EEOC is concerned about. For example, in EEOC v. Joe’s Old Fashioned Bar-B-Que, Inc . , 401 the EEOC brought an action alleging race discrimination. The charging party worked in carryout at a restaurant and alleged that during her employment, she worked with a coworker who harassed her on the basis of her race. 402 The charging party had reported these incidents to the restaurant, which led to members of management telling the coworker to stop his behavior and, when the charging party’s coworker hit her, terminating his employment. In evaluating the partial motion for summary judgment, the court found that the employer’s management did not act with reckless indifference as to justify punitive damages and that the employee’s behavior was outside of the scope of the duties of his employment such that the employer was not liable for the battery and intentional infliction of emotional distress. 403 After trial, the jury returned a verdict in favor of the employer. The EEOC moved for judgment as a matter of law and for a new trial. 404 However, the Judge found that the evidence adduced at trial was sufficient to support the jury’s verdict. Among other things, the court noted that “the parties elicited conflicting testimony regarding the material elements of [charging party’s] claims, especially Defendant's knowledge of [coworker’s] conduct towards [charging party].” 405 The court therefore denied the EEOC’s requests for judgment as a matter of law and for a new trial. Similarly, in EEOC v. Driven Fence, Inc. , 406 the U.S. District Court for the Northern District of Illinois held that an employer had constructive knowledge of racial harassment based on the knowledge of a supervisor who had himself engaged in the harassing conduct . 407 The issue for the District Court was whether the company could be held liable for the harassing conduct of plaintiff’s coworkers: “[i]f the harassers were [plaintiff’s] supervisors, then [employer] is strictly liable for the harassment. . . . If the harassers were other, non-supervisory co-workers, then [employer] is liable if it was ‘negligent in discovering or remedying the harassment.’” 408 The employer argued that it was not aware of the harassment because plaintiff had not made a concerted effort to inform the employer that a problem existed. 409 But the District Court held that a reasonable jury could conclude that the warehouse supervisor had a duty to report harassment to the company’s upper management, even though that supervisor had himself participated in the harassing conduct. 410 about the harassment where “at least two supervisors . . . were aware of that inappropriate conduct, and that supervisors and employees were discouraged from reporting misconduct to [employer]”). 401 EEOC v. Joe’s Old Fashioned Bar-B-Que, Inc ., No. 5:18-CV-180, 2020 WL 3128599 (W.D.N.C. June 12, 2020). 402 Specifically, her coworker muttered racial epithets to her, told jokes where the punchline included racial slurs, and, in one incident, poured sauce on her, hit her with a pan, and yelled racial slurs and racially charged remarks at her. Id. at *2. 403 Id. at *6. 404 EEOC v. Joe’s Old Fashioned Bar-B-Que, Inc ., No. 5:18-CV-180, 2020 WL 7318145 (W.D.N.C. Dec. 11, 2020). 405 Id. at *1. 406 EEOC v. Driven Fence, Inc. , No. 17-CV-6817, 2019 WL 3555211 (N.D. Ill. Aug. 2, 2019). 407 In that case, a black employee alleged that he was subjected to several racially charged comments from his colleagues. Id. at *2. Among other things, plaintiff had alleged that when he had entered his place of employment on one occasion he saw a noose hanging from a rafter. Id. His coworkers subjected him to continued harassment regarding that incident, including saying, “if you don’t do your work right, this is what’s going to happen,” and grabbing his arms and trying to put his head in the noose. Id. 408 Id. (quoting Nischan v. Stratosphere Quality, LLC , 865 F.3d 922, 930 (7th Cir. 2017)). 409 Id. 410 Id. at *3. According to the company’s employment policies, that supervisor was the manager who was supposed to receive employee reports of harassment and other misconduct. Id. at *1. According to the District Court, it would be reasonable to infer based on that policy that the supervisor was the person responsible for bringing harassing conduct to the attention of the employer’s upper management. Id. at *3. Accordingly, “[a] jury could find that under these rules and expectations, [supervisor] was required to bring disrespectful employees, including himself, to [upper management’s] attention, and as a result, that [employer] was on constructive notice of the harassment of [plaintiff].” Id.