Is the Fourth Circuit Turning the Tide on Discrimination Cases?

Is the Fourth Circuit Turning the Tide on Discrimination Cases?

Yesterday the Fourth Circuit overturned, partially, an employer win at the trial court.  The case came up in the context of a racial harassment case involving several African-American employees.  In the Equal Employment Opportunity Commission v Xerxes Corporation, The EEOC sued on behalf of several named employees and a class of people affected by the hostile work environment.  In reading about the company’s response, the frustration of dealing with such a workplace becomes clear.  Various people called employees offensive names, but as the company’s discipline ratcheted up, the harassment became anonymous and more sinister.  The black employees received anonymous messages, drawings of figures in nooses, references to the KKK, and general hostility.  Although the local sheriff got involved, no one discovered who had delivered the messages.  When anyone specific was called on the carpet, though, he or she dutifully apologized and took anti-harassment training.  Some were suspended, and more were warned that any further incidents would lead to termination.

The Fourth Circuit held that once the company did get involved, its response was acceptable.  While the best outcome, of course, is for all of the harassment to stop, when an employer promptly investigates and takes steps designed to stop the racially charged behavior, it is insulated from a lawsuit.  Here, though, the company took too long to respond to the first complaints, and will have to go to trial.

While this reversal permitting a trial is a welcome departure from the Fourth Circuit’s usual affirming of summary judgment, there is some troublesome language in the decision.  Several racial epithets are referred to as “isolated” remarks, code for “we are not going to worry about a little bit of discrimination, just a lot.”  Yet another employee’s testimony was discounted for being too general.  The court faulted him for not having detail, context, examples, and time frames.

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