Diversity Insight

Take Action from the Top, Don’t Delegate Remedy to Victim

Seven is an important number for the Equal Employment Opportunity Commission (EEOC). If it files seven harassment lawsuits in a week, it then bundles them up into a national press release. It has done so in June and August last year. The seven June lawsuits all involved sexual harassment, one of them same-sex and racial harassment. The August bundle of seven was more varied, alleging harassment based on race, national origin, and sex. Five of the August seven also included claims that the employees were retaliated against for reporting the harassment.

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While it’s very likely that none of the two sets of cases was filed in your state, there’s little doubt the problem is pervasive, as the cases involved workers at country clubs, construction sites, and cleaners; at sports bars, tea shops and airlines; in health care, Hollywood, and grocery stores.

Clearly, the EEOC is intent on bringing legal action when employers fail to protect their employees from harassment. The allegations of a recent lawsuit filed by the agency in federal court in Arizona—apparently not in a week with six other case filings—presents a classic case of failing to take prompt and effective remedial action in the face of harassment complaints.

Nooses, N-word, Nazi salute

The allegations about the work environment at Arizona Discount Movers sound more like the Jim Crow South than 21st century Arizona. They are just allegations, but the EEOC investigated and found reasonable cause to believe they were true. Be warned, the allegations are quite shocking.

The EEOC alleges that Clinton Lee was subjected to harassment on the basis of his race nearly every day of his eight-month employment in 2013 and 2014 at the moving company owned by Amy Hannah. Supervisor Gary Carpenter allegedly was an open and notorious white supremacist who made numerous racially charged remarks, such as “white power,” “if you’re not white, you’re not right,” and used the N-word. Carpenter reportedly often opened morning staff meetings by saying “white power” and giving the staff a Nazi salute.

Arizona Discount Movers employees had to pick up their paychecks in person. When Lee had to pick up his paycheck, Carpenter would routinely tell him, “Get out of here, we’re having a Klan meeting,” according to the lawsuit.

In or about December 2013, Carpenter allegedly placed a horse jockey statue on his desk, affixed a whip in the jockey’s hand, tied the whip around the horse’s neck in the style of a noose, and labeled the statue “Clint.”

In May 2014, a troll doll was spray-painted black and hung from a hook in full view of staff and management, according to the EEOC suit. A Post-it note was affixed to the doll. The note read “Clint King.” During a staff meeting, Carpenter pointed to the doll and told Lee that the doll was Lee. Lee went to the owner, Hannah, to complain about the troll doll. Hannah allegedly told Lee to take the doll down himself. He then quit.

Employee Quits, Case Sits for 3 Years

Lee filed a charge of discrimination with the EEOC, which apparently sat in the agency’s backlog from 2014 or 2015 until March 2018, when it issued a cause determination. The agency invited Arizona Discount Movers to conciliate, an invitation the lawsuit alleges the company declined.

The EEOC lawsuit alleges that the racial harassment Lee suffered and Arizona Discount Movers’ failure to remedy it was so intolerable that a reasonable person would have felt compelled to resign, as did Lee. Thus, the EEOC has filed claims of racial harassment and constructive discharge and seeks back pay, compensatory damages for Lee’s emotional pain, suffering, and humiliation, and punitive damages for the malicious and reckless conduct described in the lawsuit. The EEOC also is asking the court to order Arizona Discount Movers to take strong action to reform its practices, including revision of existing equal employment opportunity (EEO) policies and procedures, training by an outside vendor, and evaluating its managers in part based on their compliance with EEO policies and procedures.

Don’t Do This

From the EEOC’s allegations that supervisor Carpenter’s white supremacist statements were open and notorious, it may be that Arizona Discount Movers knew what its African-American employee was up against and took no action to protect him. That is wrong enough. Employers cannot condone harassment or turn a blind eye to it.

Even more essential, when the employee comes forward with a complaint, you must investigate and take any and all remedial action necessary to protect him from further harassment or retaliation. That involves more than ending the immediate incident. A proper response would be a thorough investigation and discipline, including firing bad actors.

Never ever put the burden on the complaining employee to take remedial action for himself. Lee should never have to see that troll doll again, and he should not have to quit to make sure he does not.

At press time, Arizona Discount Movers had not filed its response to the EEOC’s lawsuit, and we only have one side of the story. The employer may successfully defend the case, and the allegations may be completely untrue. We will monitor the case and report on significant future developments. Based on the allegations, however, study the case for lessons in exactly what not to do when presented with a harassment complaint.

Dinita L. James is a partner in the Gonzalez Law, LLC law firm in Tempe, Arizona and is an Editor for the Arizona Employment Law Letter. She can be reached at dinita.james@gnzlaw.com or 480-565-6400.