What should an employer do when it learns of potential workplace harassment? Hudson v. Lincare, Inc., No. 22-50149 (5th Cir., Jan. 18, 2023), offers a recent example of how an employer should respond when an employee (or other individual, for that matter) alleges unlawful workplace behavior: take the report seriously and protect employees from the harassing behavior, conduct an appropriate investigation, and take action to stop the harassment. An employer who takes these steps stands a far better chance of successfully defending against a workplace harassment lawsuit. And, of course, showing employees that your organization does not tolerate discrimination, harassment, or retaliation is also the right thing to do.
Brittany Hudson worked as a sales representative for Lincare, Incorporated from 2015 until she resigned in August 2019. Hudson was the only African American employee among her colleagues and the company management and human resources representatives involved in the alleged harassment.
According to Hudson, she was subjected to racial harassment soon after transferring to the company’s Austin office. The behavior included her colleagues using racial epithets, making racially charged statements, and specifically being called the N-word during a June 2019 meeting. In one reported comment, an area manager allegedly told Hudson that she should change her hairstyle and dress. Hudson also contended a colleague referred to her as “loud and black” and “ghetto.”
Use of such language and commentary must not be tolerated and has no place at work. Just a single use of certain slurs can be sufficiently severe to support a hostile work environment claim. The court did not address whether the conduct was sufficiently severe or pervasive, however, and granted summary judgment in the employer’s favor because of the company’s response upon learning of the situation.
Hudson complained that Lincare’s response to her complaints was insufficient because there was no in-person investigation, no follow up meetings to address the language, and no formal apology. Lincare presented evidence that it immediately investigated and within five days of learning of the behavior issued final written warnings to the employees accused of using the inappropriate language. The warnings said that the employees would be terminated if they again used similar language again. The manager also testified that she made clear during an in-person meeting that such language would not be tolerated. There were no further reports of racially inappropriate behavior by the two employees.
The trial court granted summary judgment to Lincare, reasoning that there were isolated incidences of racist language and one verbal altercation. The court also found that Lincare, upon learning of the behavior, took prompt remedial action to put a stop to it. The company “initiated an investigation, interviewed the employees involved, and issued final warnings to” the involved employees. Lincare’s swift response to the complaint was not only intended to prevent the harassment but also stopped the behavior. That is how it should be.