A hostile work environment caused by racial discrimination is illegal under
the Civil Rights Act of 1964. In most cases, the employee must have experienced
such an environment directly to prevail in a lawsuit. But what if other
employees in your workplace experience racial discrimination of which
you are unaware until after you quit. Can you then allege it happened
to me too?
Nope, according to a
decision by the 11
th Circuit Court of Appeals. In this case, 23 African-American current and
former employees of Austal, which is based in Australia and has its U.S.
headquarters in Mobile, Alabama, sued the company, alleging vulgar racial
graffiti frequently appeared in the shipyard's restrooms and that
white supervisors called an African-American employee derogatory terms.
The lower court threw out the case of six of the 23 employees because
they were not aware of the discriminatory incidents directed against the
other employees until after the lawsuit was started.
According to the complaint, vulgar racial graffiti was continually written
on the bathroom walls. Austal cleaned the bathroom every few weeks and
eventually painted the walls black. Several of the employees also saw
or heard about a noose found in the break room at Austal in May 2008.
Some employees saw multiple nooses. In total, employees discovered eight
nooses at Austal while the plaintiffs worked there. Several of the employees'
white counterparts also offended them by wearing or displaying Confederate
flag paraphernalia. And several employees allege that white supervisors
and coworkers called them or another African-American employee "boy,"
"monkey," and "Jeffrey."
While most of the plaintiffs were directly affected by the hostile work
environment, others were not. For example, one of the plaintiffs frequently
"saw co-workers wearing apparel with the Confederate flag, which
did not directly humiliate or threaten her. The only other harassment
she experienced firsthand was not pervasive or severe: She saw racist
graffiti on boxes in the women's restroom, but it did not cover the
walls, like the graffiti in the men's restroom...All of the other
harassment she learned about from other people. Even though others sent
her photographs of the graffiti in the men's restroom 'at least
every week,' she willingly accepted the photographs and did not ask
that they stop or tell the senders that she felt harassed by them. Considering
the totality of the circumstances, a reasonable jury would not find that
her workplace was objectively hostile."
"The totality of a plaintiff's workplace circumstances does not
include other employees' experiences of which the plaintiff is unaware,"
Judge Pryor wrote. "Courts conduct the objective assessment from
the perspective of a reasonable person in the plaintiff's position,
knowing what the plaintiff knew. A reasonable person in the plaintiff's
position is not one who knows what the plaintiff learned only after her
employment ended or what discovery later revealed."
The takeaway? To show that you have been subject to a hostile work environment
caused by racial discrimination, you must have directly experienced the
discrimination while you were employed. Relying on "me too"
evidence experienced by other co-workers won't fly.