Humans are unique in their use of words. With them, we explain the world around us, share our thoughts and feelings, teach, and define ourselves. Therefore, it should be no surprise that words also can injure. Trying to excuse words by saying “I didn’t mean to hurt anybody” or “Everyone says that” usually rings hollow. In the English language, there are few words more opprobrious and hateful than the “n” word. Although segments of pop culture seem to have a conflicted, contradictory, and self-destructive relationship with that word, it should be clear to employers that the word has no place in a modern workplace. Unfortunately, one employer learned that lesson the hard way.
Widespread use of racial slurs
James Buie, Antonio Bratcher, and Joby Bratcher, who all are African- American, worked for Holmes & Holmes Industrial, Inc., a construction company. While working on a project for Chevron, they were supervised by Paul Facer, a white man. During the 2 years that they worked for Holmes, Facer repeatedly and regularly referred to Buie and the Bratchers as “n____r” or “n___a.” In fact, he admitted using the words almost every time he saw the Bratchers.
Facer also told various “jokes” in front of Buie and the Bratchers, all of which used the “n” word and contained punch lines that played on negative racial stereotypes. Further, he referred to his own nose as a “n____r nose” because it is broad. Finally, he admitted that he possibly had used the word “monkey” when referring to the Bratchers. In addition to Facer’s conduct, during a safety meeting, Holmes’ HR manager, Dale Arrington, once told an employee “not to n____r-rig” his job. On a different occasion, another supervisor, Scott “Tiny” Pixton, referred to a rap song as a “n____r jig.”
One Holmes supervisor, Paul Fail, stated that everyone told and laughed at racist jokes at Holmes’ worksites. Additionally, portable toilets that Holmes provided at its worksites were covered inside and out with racist graffiti. One employee described the graffiti as being “everything you can imagine and probably things you can’t imagine.”
Neither Buie nor the Bratchers were silent about the incidents and complained to both managerial and nonmanagerial employees. For instance, after Arrington’s comments, the Bratchers complained to Kelvin “Shad” Pixton and Jesse Gehrke, who were pipe fitters at the company. Although Facer and other supervisory staff were at the safety meeting when Arrington made the “n____r-rig” comment, Holmes conducted no investigation. Ron Holmes, one of the company’s owners, told Arrington to apologize and not to use the term again, but that was the extent of the discipline.
On the same day that Tiny Pixton made the comment about rap music, Antonio submitted a written complaint to Clayton Firth, a supervisor, but neither Holmes’ HR manager nor its owners were told about the complaint. The Bratchers also complained about racial slurs to Chevron representative Kyle Doman, one of Holmes’ pipe-fitter welder helpers, and Elizabeth Vargas and Natalie Davis, two of Holmes’ “fire watch” employees. Ron Holmes even admitted that given the fact that he often visited the Chevron worksite, he should have known about Facer’s and others’ use of racial slurs.
After the behavior had been going on for approximately two years, the Bratchers complained to Ron Holmes about Facer’s use of racial slurs. Soon after, Facer told Joby that “Antonio is trying to get me in trouble for this n____r shit.” Facer’s behavior improved, but only for a few weeks. Approximately one year later, the Bratchers complained to Holmes’ owners, Ron and Mike Holmes. During the meeting, the Bratchers explained they felt that by not addressing the problem, the company was condoning Facer’s actions.
After the meeting, Arrington conducted an investigation that consisted of speaking with several employees about racism and drug use. However, he didn’t speak with Facer about the Bratchers’ allegations. On August 21, 2008, Holmes prepared a written corrective action, but neither Ron or Mike Holmes nor Facer ever signedit.
On August 20, Chevron demanded that all Holmes employees take a drug test. Facer refused to do so and “self-terminated” his employment with Holmes. Joby self-terminated his employment for the same reason, and Holmes laid off Antonio for lack of work.
After Facer’s self-termination, Holmes suspended him for 120 days for the racial slurs and refusing to take the drug test. Facer returned to Holmes in December at a reduced wage.
Hostile work environment claim
The Equal Employment Opportunity Commission (EEOC) sued Holmes in Utah’s federal district court for creating and condoning a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. When courts consider whether a hostile work environment exists, they “consider the work atmosphere both objectively and subjectively, looking at all the circumstances from the perspective of a reasonable person in the [employee's] position as well as the [employee's] own perspective.”
Holmes perpetuated an objectively hostile work environment
The court explained there was abundant evidence―specifically, a “steady barrage of opprobrious racial comments”―that established an objectively hostile work environment. The court noted the case didn’t involve “simple teasing, offhand comments, and isolated incidents.” According to the court, no reasonable jury could find the events to be anything other than objectively offensive.
The fact that Buie and the Bratchers may have remained dedicated and hardworking employees was irrelevant. As the court explained, “The fact that [they] continued to be good workers in the face of the insults is not the test for finding a hostile environment.”
Holmes tried to defend itself by arguing that Facer was friends with Buie and the Bratchers and that there was no racial hatred behind the slurs. While there was evidence that Facer, Buie, and the Bratchers had social contact with each other outside work, the court rejected Holmes’ argument because “Facer’s alleged misperception that his subordinates were not offended has no bearing on whether his conduct subjected the Bratchers to a hostile work environment. The test is whether a reasonable person would have found the environment objectively hostile.”
Holmes perpetuated a subjectively hostile work environment
The court also determined that the work environment was subjectively hostile. Buie and the Bratchers had complained to several individuals, which showed that they subjectively viewed the working environment as hostile.
Holmes argued that it shouldn’t be held liable for creating a hostile work environment because Buie and the Bratchers regularly used the terms “n____r” or “n___a.” The employer pointed to a series of rap songs recorded by the Bratchers in which the words were used at least 39 times. Thus, Holmes argued that it was impossible for Buie and the Bratchers to be subjectively offended by either word. But the court disagreed, stating: The Bratchers’ use of the word [n___a] outside the work place and in the context of their music is completely irrelevant to whether [Holmes] subjected them to a racially discriminatory hostile work environment.
In short, the court refused to “blame the victims for the harassment inflicted upon them by [Holmes'] management.”
Holmes may be on the hook
Because Buie and the Bratchers complained to many persons (including management-level employees) and because Ron Holmes admitted he should have known about the use of racial slurs at the jobsite, the court found that Holmes had or should have had knowledge of its employees’ misconduct.
But before Holmes can be held liable for its employees’ actions, the EEOC must show that the employer’s remedial efforts were inadequate. Holmes, in an attempt to show that it took appropriate remedial steps, pointed to several instances in which it required employees to apologize. It also pointed to the investigation it conducted in August 2008―an investigation that was shortened, according to the employer, by Chevron revoking its contract with Holmes and Facer’s self-termination.
The EEOC argued that those weren’t appropriate responses and that Holmes’ alleged investigation and corrective action regarding Facer were shams meant to give the illusion of appropriate remedial action. The court decided it couldn’t make that determination and ordered that the case go to trial, where it will be decided by a jury. EEOC v. Holmes & Holmes Industrial, Inc., 2012 WL 4811209 (Oct. 10, 2012, D. Utah).
Children often chant, “Sticks and stones may break my bones, but words will never hurt me.” As adults, we should know better. Words can scar, and trying to excuse our actions (as Holmes did) by claiming that “other people do the same thing” isn’t a good defense. Hopefully, our actions (both professionally and in private) aren’t determined by the actions of others but are based on an inner sense of right and wrong.
Responsible companies must codify a sense of right and wrong in clear policies that are explained to employees and uniformly enforced. In this case, Holmes faces a couple of problems: It didn’t have a clear racial harassment policy, and it didn’t train its employees on the general harassment policy it had in place.
Although policies and training can’t guarantee appropriate employee behavior, a corporate culture averse to harassment is essential. Additionally, when policies are violated, quick, effective, and adequate measures must be taken to discipline the offender and show the offended that the company cares.
Brinton Wilkins is an attorney with Kirton McConkie in Salt Lake City, Utah. He is a member of the Employers Counsel Network and a contributor to Utah Employment Law Letter. His is also an adjunct instructor in the Communications Department at Brigham Young University where he teaches an introductory course in media law and ethics. He can be contacted at firstname.lastname@example.org.
Excerpted from Utah Employment Law Letter written by attorneys at the law firm of Kirton McConkie. The contents of the UTAH EMPLOYMENT LAW LETTER are intended for general information purposes only and should not be construed or relied upon as legal advice or a legal opinion on any specific facts or circumstances. Anyone needing specific legal advice should consult an attorney. For further information about the content of any article in this newsletter, please contact the attorneys at Kirton McConkie..