Anonymous Racist Note Triggers Liability for Employer Who Failed to Undertake an Investigation

A recent decision from the Fourth Circuit Court of Appeals (a federal court with jurisdiction over MD, NC, SC and VA) is a stark reminder to employers of the consequences of failing to appropriately respond to any and all claims of unlawful workplace harassment no, matter what the source. In Pryor v. United Air Lines, Inc. (United), the Fourth Circuit vacated summary judgment entered for United by the court below, noting that the company’s response to an anonymous violent and racially-charged note left for an employee was inadequate to shield the it from liability for creating a racially hostile work environment.

The Facts: In January 2011 July Renee Pryor, an African-American flight attendant for United Airlines, Inc. at is Dulles Airport facility, found an anonymous note in her company mailbox located in a secure mailroom restricted to United employees. The note contained numerous racial slurs and claimed to be a hunting license permitting the holder to “hunt & kill N****** . . . day or night, with or without dogs.” The note also contained an image of a lynching along with the words “this is for you.” Prior was frightened by the note an immediately shoed it to her supervisor, who told her he was “sorry” but there was not much United could to because there were no security cameras in the mailroom. The supervisor then gave Pryor an incident report to fill and told her that the report, along with the racist note, would be provided to security and the base manager. Unfortunately, the supervisor did not comply with United’s Harassment & Discrimination Policy that instructed supervisors to immediately report all complaints to the Employee Service Center (ESC) who would conduct an investigation into the claims.

Thereafter, United Management engaged in a series of missteps, including the following:

• Although the complaint was forwarded to two United Managers, it was never reported to the ESC as required under United’s policy
• The United managers who received the complaint were aware of other recent incidents of racist notes at the facility but did not report these to the ESC
• Following a brief discussion about the incident with Pryor, the manager contacted corporate security who briefly looked into the incident but closed its investigation without conducting any interviews or preserving any physical evidence or documents. Pryor was not notified of these developments.
• On February 16, 2011 Pryor contacted ESC to inquire about the status of the investigation. This prompted an investigation by Human Resources, including interviews of Pryor and her managers who failed to relate the prior incidents of racist behavior. The investigation failed to identify a suspect and the matter was deemed an isolated incident. Pryor was notified of these finding in March, 2011.
• Despite the fact that the note constituted a possible hate crime, United never notified the police. Pryor ultimately notified the police on February 24, 2011 and United management was not cooperative with the police when they inquired into the incident.
• In March 2011 United sent a “must read” email to all of the facility’s employees indicating that it was investigating unspecified “inappropriate and offensive material” and urging employees to notify management if they had any knowledge regarding the unspecified activity. Pryor’s manager told her he believed the email would discourage any future racist behaviors.
• In October 2011 Pryor and other African-American employees received a nearly identical racist death threat note in her United mailbox. United investigated the later incident and installed security cameras in the mailroom, but no suspects were identified and the investigation was closed. Pryor was not notified that the matter was closed.
• Pryor relocated to another facility in Houston.

The Court’s Holding: United argued that the two racially-hostile notes were isolated, infrequent and anonymous, and thus did not amount to a hostile work environment. The court disagreed, holding that the racist death threats alone were sufficient to create a hostile work environment. Turning to the issue of United liability for the hostile work environment, the court observed that employers are not strictly liable for hostile work environments created by co-workers and third parties, Rather, an employer will only be held liable “if it knew or should have known about the harassment and failed to teak effective action to stop it . . . . [by] respond[ing] with remedial actions reasonable calculated to end the harassment.” However, the court noted that an employer is not held to a standard simply because an anonymous actor is responsible for the conduct. Moreover, the reasonableness of the employer’s response to an incident depends, in part, on the seriousness of the underlying conduct.

Applying the foregoing principles, the court reasoned that given severity of the racial threats against Pryor, a jury could conclude that United’s response was neither prompt nor reasonably calculated to end the harassing behavior.   The court noted pointed to the following facts: United’s managers did not call the police nor escalate the matter to the ESC, as required by United policy; they did not report the prior indents of racially offensive conduct to corporate security; they did not promptly install security cameras or provide Pryor with additional protective measures; they did not do any forensic analysis or interview co-workers; they failed to inform Pryor when their investigation was closed; they were not cooperative when the police made inquiries into the situation; and finally, United’s response to the first note left for Pryor was ineffectual in stopping the behavior because the notes reappeared in greater numbers several months later.  A reasonable jury could therefore conclude that United’s “lukewarm” response to Pryor’s complaints was in part responsible for the continued racially offensive behaviors.

The Take Away: This case highlights the consequences of an employer’s failure to have a prompt and robust strategy for responding to complaint of unlawful workplace harassment.   Half-hearted, untimely investigations will not suffice.  In contrast, those employers who can show that they take all complaints seriously, follow the company’s complaint procedures to investigate allegations, undertake appropriate co-worker interviews any other investigative efforts to secure evidence, and undertake other remedial actions designed to stop the offending behaviors, have a far greater chance of escaping liability for incidents of workplace harassment that occur in the workplace. While not discussed by the court in the Pryor v. United case, employers should keep in mind that they must also show that they provided periodic anti-harassment training to management staff if they hope to avoid liability for workplace harassment.