An employer can avoid liability for one employee’s harassment of another employee if it takes prompt remedial action to address that harassment. One way to do this is for an employer to conduct an investigation, counsel the involved employees, and/or discipline the harassing employee. On the other hand, telling an employee who complains about racial harassment to “shut up, n***er” is not the right way to address harassment complaints. Chipotle Mexican Grill, Inc. learned this lesson in a recent court decision from a federal judge in Illinois. Dapkus v. Chipotle Mexican Grill, Inc., No. 1:15-cv-06395 (N.D. Ill. Jan. 4, 2017).
Anthony Dapkus claims that Chipotle discriminated against him because he is African American in violation of 42 U.S.C. § 1981 when “he was subjected to racially discriminatory epithets, was physically threatened, and was treated less favorably” than employees outside his protected class.
General Manager Cindy Gutierrez hired Dapkus as a crew member at a Chicago-area location in early November 2013. Dapkus was one of 10 African American employees in the 23-employee restaurant. None of the restaurant’s managers was African American. Dapkus alleged that African American and Latino colleagues often used various racially charged words, such as “n***er,” “n***a,” and “gorilla.” Dapkus presented evidence that the store’s service manager, kitchen manager, and general manager used that type of language. The kitchen manager, for example, told Dapkus, “Don’t run out of meat today, n***er, not on my clock,” and allegedly threatened Dapkus with a knife.
According to the decision, there were many factual disputes precluding summary judgment. The disputes were over who said what, the difference between “n***er” and “n***a,” and how accepting Dapkus was of the language used at the restaurant. There were also disputes of fact as to whether the terms were used directly toward Dapkus and his African American colleagues, whether the terms were used “collegial[ly] or [in] a racially harassing manner” and whether Dapkus used similar language. Dapkus testified that he told the managers to stop using that type of language, particularly the “n” word, but that a service manager typically responded by saying “oh, shut up, n***er.”
Dapkus also alleged that non-African American employees were treated more favorably than he was. Again, there was conflicting evidence as to whether Hispanic members of the staff were treated more favorably. Dapkus quit on February 28, 2014 after a verbal altercation with a customer.
Chipotle did not dispute that the alleged language was race-based. It contended, however, that Dapkus could not show that the harassment was unwelcome or hostile. The restaurant argued that Dapkus could not prove his claim because he used the same language and “would refer to women as ‘bitches’ and ‘hoes.’”
If this case does not settle, a jury will decide whether Dapkus found the conduct to be unwelcome, and ultimately whether Dapkus’ claims have merit.