Employer May Be Held Liable for Hostile Work Environment Created by Anonymous Racist Note: Fourth Circuit | Practical Law

Employer May Be Held Liable for Hostile Work Environment Created by Anonymous Racist Note: Fourth Circuit | Practical Law

In Pryor v. United Air Lines, Inc., the US Court of Appeals for the Fourth Circuit held that an anonymous note left for an employee in her work mailbox containing numerous racist slurs and implying deadly violence against the employee based on her race was sufficiently severe to create a hostile work environment, and that the employer airline's failure to properly address and investigate the anonymous note was an adequate basis to hold the employer liable for creating a hostile work environment. The Fourth Circuit reversed the district court's grant of summary judgment to the employer and remanded.

Employer May Be Held Liable for Hostile Work Environment Created by Anonymous Racist Note: Fourth Circuit

by Practical Law Labor & Employment
Published on 07 Jul 2015 • USA (National/Federal)
In Pryor v. United Air Lines, Inc., the US Court of Appeals for the Fourth Circuit held that an anonymous note left for an employee in her work mailbox containing numerous racist slurs and implying deadly violence against the employee based on her race was sufficiently severe to create a hostile work environment, and that the employer airline's failure to properly address and investigate the anonymous note was an adequate basis to hold the employer liable for creating a hostile work environment. The Fourth Circuit reversed the district court's grant of summary judgment to the employer and remanded.
On July 1, 2015, in Pryor v. United Air Lines, Inc., the US Court of Appeals for the Fourth Circuit held that:
  • An anonymous note left for an employee in her work mailbox using numerous racist slurs and implying deadly violence against the employee based on her race was sufficiently severe to create a hostile work environment.
  • The employer airline's failure to properly address and investigate the anonymous note was an adequate basis to hold the employer liable for creating a hostile work environment.
The Fourth Circuit reversed the district court's grant of summary judgment to the employer and remanded. (No. 14-1442, (4th Cir. July 1, 2015).)

Background

In January 2011, Renee Pryor, an African-American flight attendant for United Air Lines, Inc. (United), found an anonymous note in her employee mailbox located in a secure mailroom restricted to United employees at the Dulles International Airport. The note:
  • Contained numerous racist slurs and a hand-drawn image of a lynching.
  • Stated that it was a license to hunt and kill people of plaintiff's race, day or night with or without dogs.
  • Was directed at Pryor by stating, "this is for you."
United maintained a written "Harassment and Discrimination" policy which required supervisors and managers to:
  • Take discrimination and harassment allegations seriously.
  • Contact United's Employee Service Center (ESC) immediately to report an employee's discrimination and harassment complaint.
After Pryor received the note, the following events occurred:
  • Pryor immediately brought the note to her supervisor, who told her that he was sorry, but there was not much United could do, and to fill out a report.
  • Pryor's supervisor did not contact ESC.
  • Pryor's complaint about the note was brought to the attention of two other United managers, neither of whom contacted ESC.
  • United's corporate security department briefly looked into the incident and closed its investigation without conducting any interviews or preserving any physical evidence or documents.
  • In February 2011, Pryor contacted ESC to find out the status of United's investigation which led United's human resources department to gather information about the incident.
  • Human resources failed to identify any potential suspects and viewed the incident as isolated.
  • In March 2011, United sent an e-mail to employees:
    • indicating that United was investigating unspecified "inappropriate and offensive material;" and
    • directing employees to contact a manager if they had any knowledge about this unspecified material.
  • Pryor also reported the incident to the police, a step that United did not take even though the threat involved a possible hate crime at a major airport. United's management was not cooperative during the police investigation and the police closed the investigation.
  • In October 2011, Pryor received in her United mailbox at Dulles a nearly identical anonymous note containing racist language and death threats. (Four other African-American employees received the same note in their mailboxes around the same time.) In response, United investigated and installed security cameras in the mailbox area, but no suspects were identified and the investigation was closed.
  • Pryor relocated to another airport.
After filing a complaint with the EEOC and receiving a right-to-sue letter, Pryor sued United in district court, alleging that United:
  • Engaged in a systemic pattern and practice of unlawful race discrimination by failing to adequately investigate her complaints.
  • Created a hostile work environment.
The district court granted summary judgment to United, finding that although the notes Pryor received were sufficiently severe to create a hostile work environment, the conduct could not be imputed to United. Pryor appealed to the Fourth Circuit.

Outcome

The Fourth Circuit vacated the district court's grant of summary judgment to United and remanded, holding that:
  • The anonymous racist notes were sufficiently severe to create a hostile work environment.
  • United was liable for the first anonymous note Pryor received due to its failure to promptly address or properly investigate in order to reasonably deter and end the harassment.
The Fourth Circuit noted that:
  • Surviving summary judgment required Pryor to show that a reasonable jury could find that the conduct she alleges was:
  • Only the third and fourth elements discussed in Okoli were at issue in this case.
  • An employer can be liable for a hostile work environment created by co-workers and third parties if the employer:
  • Anonymous conduct that creates a hostile work environment does not mean that an employer is held to a lesser standard of liability (EEOC v. Xerxes Corp., 639 F.3d 658, 669 (4th Cir. 2011)).
  • The reasonableness of an employer's response to a hostile work environment complaint depends on:
    • the seriousness of the conduct involved;
    • the promptness of its investigation;
    • the specific remedial measures taken; and
    • the effectiveness of those remedial measures.
    (EEOC v. Xerxes Corp., 639 F.3d 658, 669 (4th Cir. 2011)).
The Fourth Circuit found that the notes were severe enough to create a hostile work environment because the notes:
  • Used the n-word, which is degrading, humiliating, and can instantly create a hostile work environment for African-Americans (Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2011); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993); Walker v. Thompson, 214 F.3d 615 (5th Cir. 2000)).
  • Threatened actual violence and alluded to the murderous practice of lynching.
  • Were left in a secure mailroom in a space with restricted access and security clearance, giving a reasonable employee significant basis to be frightened.
  • Were not the only racist conduct involving United employees at Dulles Airport, as there had been other troubling incidents including:
    • the second note Pryor received also being received by four other African-American flight attendants in their company mailboxes;
    • a racist message written on two apartment advertisements that had appeared in the flight attendants' breakroom several months before Pryor received the first anonymous note; and
    • rumors dating back to the 1990's (which had resurfaced in 2009-2010) about African-American flight attendants engaging in prostitution.
The Fourth Circuit found that a reasonable jury could find United liable based on its response to the first anonymous note Pryor received because:
  • United knew about the note.
  • The note involved some of the most serious conduct that can occur in a workplace, that is, a threat of violence against an individual because of her race.
  • The perpetrator was likely a United employee or an individual with access to United's mailroom.
  • United's response was not prompt or reasonably calculated to end the harassment, but was reluctant and lukewarm, as United failed to:
    • call the police or cooperate with the police's investigation initiated by Pryor;
    • report Pryor's complaint to ESC even though United's policy specifically required that action;
    • install security cameras or other monitoring devices in the mailroom (until the second note appeared in Pryor's mailbox ten months later);
    • provide Pryor with security or implement other protective measures;
    • adequately investigate the incident by obtaining fingerprints, interviewing co-workers or doing any forensic analysis; and
    • inform Pryor when its investigation was closed.
  • United's extremely inadequate response to the first note Pryor received could have led to the later notes that Pryor and other African-American employees received and a more effective response by United could have increased the chances of identifying suspects and deterring further conduct.
Although the Fourth Circuit did not specify exactly what United should have done to address the anonymous notes, it pointed out that United could have:
  • Reported the incident immediately to the police.
  • Conducted interviews with co-workers and others with mailroom access.
  • Promptly sent correspondence about the incident to Dulles-based employees.
The Fourth Circuit also emphasized that the legal requirement to take measures reasonably calculated to end harassment does not require employers to respond perfectly or with best practices and that there are multiple ways for an employer to reasonably respond (see Mikels v. City of Durham, N.C., 183 F.3d 323, 330 (4th Cir. 1999)).

Practical Implications

The Fourth Circuit's decision in Pryor serves as an example that employers must:
  • Take seriously all harassment and discrimination complaints, including complaints involving anonymous conduct.
  • Require that managers and supervisors adhere to all practices and procedures for addressing harassment and discrimination complaints.
  • Provide managers and supervisors with adequate training for handling harassment and discrimination complaints.
  • Conduct detailed and thorough investigations when employees make complaints of discrimination or harassment.
  • Take appropriate remedial actions to address actual harassing or discriminatory conduct in the workplace.
  • Report to the police employee complaints involving threats of workplace violence, especially those involving death threats.