Employee advocates have a hell of a problem pinpointing for their clients the exact magic moment when to complain to HR about sex or race harassment. Complain too late, and a court may find that the employee did not reasonably avail herself of corrective measures under Kolstad, Faragher and Ellerth. But complain too early, as today’s case lamentably shows, and the employee may not be protected by Title VII’s anti-retaliation provisions at all.
Butler v. Alabama Dep’t of Transportation, No. 07-13358 (11th Cir. July 30, 2008): The facts as summarized by the court —
“Alvarene Butler is black and Karen Stacey is white. They both worked for the Alabama Department of Transportation. One work day in January of 2005 they were going to lunch together. Stacey was driving a pickup truck, and Butler was the only passenger.
“On the way to lunch, the truck collided with another vehicle, which was driven by a black male. After the collision, Stacey turned to Butler and asked: ‘Did you see that? Did you see that stupid mother fucking nigger hit me?’ A few minutes later, when the driver of the other vehicle was attempting to re-route traffic around the accident, Stacey said: ‘Look at him now. Now that stupid ass nigger down there is trying to direct traffic. I hope something come [sic] over that hill and run over his ass and kill him.’ Butler understandably found Stacey’s use of racial epithets offensive. She did not, however, believe that Stacey’s words were directed at her.
“Later that day, while she was at the hospital receiving treatment for chest pains caused by the accident, Butler tried to inform her immediate supervisor, Patrick Jackson, about Stacey’s offensive language. As Butler was trying to tell Jackson what happened, he interrupted her and told her to stop. Other than that one attempt, Butler did not try to inform Jackson, or any other supervisor, about the incident until three months later.”
A couple of years ago, there was a notorious decision — Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006) — in which an employee was fired after reporting that a co-worker allegedly told the plaintiff that “they should put those two black monkeys in a cage with a bunch of black apes and let the apes f**k them.” The panel majority held that the employee lacked an objectively reasonable, good faith belief that the single racial remark constituted a “hostile work environment,” and was thus not engaged in protected opposition to racial discrimination for purposes of Title VII. The en banc court divided evenly and, by operation of law, upheld the panel decision. The Supreme Court denied certiorari.
Jordan was decided on a motion to dismiss. But in this case, the employee proceeded all the way to trial and won a $200,000 verdict under § 1981, only to lose it all on appeal essentially on the same ground as Jordan did in his case. The panel here held that the two remarks, even under the heated circumstances (confined space, traffic accident with the passenger injured, violent language), did not add up to even an arguably hostile work environment:
“Assuming that Butler did believe that Stacey’s words immediately after the wreck amounted to an unlawful employment practice by ALDOT, her belief is not objectively reasonable. It is not even close. The incident consisted of Stacey’s use of a racial epithet twice a few minutes apart. What Stacey said was, as Butler testified, ‘uncalled for’ and ‘ugly.’ But not every uncalled for, ugly, racist statement by a co-worker is an unlawful employment practice. This incident occurred away from work. It did not happen within the hearing of any supervisors. Butler admits that she never thought the epithets, deplorable as they are, were aimed at her. She has never even suggested that this one-time use of vile language away from work created a hostile work environment. She also conceded during cross-examination that the incident did not affect her ability to do her job.”
So perhaps the panel has, inadvertently, done employee advocates a favor here. Now we know that the employee ought to complain right away and be able to testify that the racial epithets produced fear and affected their ability to their job, at least to preserve the hostile work environment claim. But because we know that complaining at the first sign of trouble will generally not protect the employee against retaliation for opposition to the hostile work environment, the only safeguard left is to file an EEOC charge immediately (which is unmistakably protected under the separate “participation” prong). But that’s a hell of a way to run a railroad.