Does it ever feel like managing the workplace can be like keeping the peace between children fighting in the back seat of the family car?  This was the feeling in a recent out-of-state case where a Court held that an employer was not liable for the alleged hostile work environment created amongst bickering co-workers or for retaliation because the employer promptly investigated each and every complaint and responded appropriately.

Vance was a part-time catering assistant at a University.  She complained to administration that a co-worker had used a racial epithet to refer to her and/or African-American students and had boasted that her family had ties to the Ku Klux Klan. The University immediately investigated, corroborated the complaint, issued the co-worker a written warning, and had two supervisors counsel the co-worker.

From there, the story devolved into a series of complaints by Vance against her co-workers and vice versa that reminds one of children fighting. The complaints included:

• Co-worker blocked Vance’s exit from elevator
• Co-worker complained Vance said “you are an evil bitch”
• Co-workers were allegedly slamming pots and pans down in the kitchen
• Co-worker said the word “payback” to Vance
• Co-workers “glared” at Vance
• A supervisor “mean-mugged” Vance
• Vance was given diminished work duties and less overtime after her promotion
• Vance told co-worker “Just the beginning bitch-you better watch your house”
• Co-workers smiled at Vance and gave her “weird” looks
• Co-worker said to Vance “are you scared?”
• Co-worker splattered gravy on Vance

For each of these complaints, the University instigated an investigation.  In each investigation, the University found the alleged conduct had not occurred, or that it was a case of “he said – she said,” in which case the University counseled both employees. Even in instances where the alleged conduct could not be sustained, the University reminded Vance and her co-workers to treat each other with respect.

In the midst of all of this, Vance applied for and accepted a promotion to a full-time caterer position. Her duties remained somewhat the same, but also included other duties.  Vance was eligible for overtime, but because she took some FMLA leave, called into work sick on many occasions, and left work early, she often did not have enough regular hours to receive overtime.

Vance filed a lawsuit against the University for, among other things, hostile work environment based on race and retaliation, both in violation of Title VII of the Civil Rights Act. After summary judgment in favor of the University, Vance appealed and the Seventh Circuit Court of Appeals upheld the decision.

Other than the initial complaint about the co-worker’s use of a racial epithet, the Court struggled to find that any of the other complaints alleged conduct motivated by race.  Be that as it may, the Court found that there could not be any employer liability.  Where co-workers are the ones culpable for making a work environment hostile, liability only attaches under Title VII where the employer has been negligent either in discovering or remedying the harassment.

At every turn, the University investigated each complaint, involved the appropriate supervisory personnel, and took appropriate remedial action based on the facts and circumstances known to the University. 

“As we have said before, prompt investigation is the ‘hallmark of reasonable corrective action.”

The Court concluded Vance’s claim that the University retaliated because of her complaints by promoting her, diminishing her work duties and denying her overtime, was similarly without merit.  The promotion was sought by Vance and was not an adverse employment action. Her duties changed to the extent of that promotion and were similar in nature to another employee in the same position.  Because of Vance’s frequent leaves, she worked fewer regular hours in order to even qualify for overtime. She failed to establish that she should have received the same overtime hours as her counterpart. 

It cannot be stressed enough that, when employers are put on notice of a potential complaint of hostile work environment, discrimination or retaliation, they must immediately investigate the complaint.  If the investigation reveals any wrongdoing, you must take appropriate remedial action.  Even if the investigation does not reveal wrongdoing, consider other reasonable steps, such as workplace harassment training for all employees in the affected department or division.  These few measures will insulate the employer from liability or arduous jury trials for conduct perpetrated amongst co-workers.

LCW offers a comprehensive guide for employers on conducting Disciplinary & Harassment Investigations, as well as training and materials on Preventing Workplace Discrimination, Harassment and Retaliation.