One might think displays of Confederate flags and nooses, racial slurs and evidence of malicious graffiti and epithets is enough to establish a racially hostile work environment. However, a recent ruling by the U.S. Court of Appeals for the Eleventh Circuit found that employees cannot use such evidence to claim a hostile work environment if they were unaware of the conduct.
In 2008, 23 African-American current and former employees working at the Alabama shipyard of an Australian shipbuilding company sued for racial discrimination. The plaintiffs presented evidence of graffiti in the men's restrooms that included racist jokes and slurs. Additionally, eight nooses were discovered in the shipyard during the time the plaintiffs worked for the defendant, while several white employees wore or displayed Confederate-flag paraphernalia.
On appeal, although the court found "substantial evidence of serious racial misconduct," it also noted that not all of the employees shared the same supervisor, worked in the same department or were employed during the same time periods. Thus, only seven black shipyard workers were able to prove they were personally exposed to the acts of discrimination, while 16 others were actually unaware of the conduct and simply relied on "me too" evidence to support their claim of an objectively hostile work environment.
Applying an approach followed by the Sixth, Seventh, Eighth, Ninth and Tenth Circuits, the court stated that an objective assessment from the perspective of a reasonable person in the plaintiff’s position — knowing what the plaintiff knew — would not include someone who only learned of the conduct after his or her employment ended, or that was later revealed in discovery. As a result, the court found that no reasonable jury could find the workplace harassment was sufficiently frequent and severe to support a lawsuit and dismissed the claims of the plaintiffs who lacked firsthand knowledge of the discrimination.
While the ruling in this case may be considered a partial win for the employer, seven plaintiffs' claims were upheld because they were, in fact, subjected to illegal racial discrimination and harassment.
Allowing such behavior — racial slurs, offensive or derogatory remarks about a person's race or color, or the display of racially offensive symbols — is illegal under Title VII of the Civil Rights Act. Employers can minimize workplace discrimination and harassment liability by implementing harassment training.