A new decision from the U.S. 6th Circuit Court of Appeals (which covers Michigan employers) provides guidance for employers on the corrective actions necessary to respond to employee harassment allegations under Title VII of the Civil Rights Act of 1964.
4 Separate Incidents Alleged
Ronald Burns was employed as a maintenance technician by Berry Global, Inc., where he claimed he was the victim of racial harassment. On four separate occasions, racially discriminatory notes and items were placed in his locker or toolbox. After each incident, the employer promptly responded and progressively increased its remedial action to end the harassment. Among the remedial action taken, Berry Global:
- Diligently reviewed security footage;
- Interviewed 19 employees on two different occasions;
- Held refresher training for all workers; and
- Improved safety measures by relocating security cameras and requiring supervisors to inspect the locker rooms before and after shifts.
Throughout the investigation, Berry Global continuously updated and communicated with the victim.
Court Uses Coworker Harassment Standard
Burns’ alleged harasser was never identified. Therefore, the 6th Circuit analyzed the case under the coworker (not supervisor) harassment standard: An employer is liable for harassment committed by a victim’s coworkers when the company is negligent in controlling the working conditions. The negligent standard requires the employee to prove the employer “tolerated or condoned” the harassment in light of the facts the company knew or should have known.
Courts have recognized a base level of reasonably appropriate corrective action includes “promptly initiating an investigation to determine the factual basis for the complaint, speaking with the specific individuals identified by the complainant, following up with the complainant regarding whether the harassment was continuing, and reporting the harassment to others in management.” Ultimately, an employer’s response is generally adequate if it’s reasonably calculated to end the behavior.
Burns argued Berry Global’s response permitted the misconduct to continue because it wasn’t prompt, the investigator was unqualified, and the refresher training didn’t address the company’s harassment policy. The 6th District disagreed, finding a response within the “next week” is generally considered prompt, an HR generalist is typically qualified to investigate even when the probe isn’t conducted perfectly, and no case law requires additional harassment, discrimination, or sensitivity training. Burns v. Berry Global, Inc., Court of Appeals, 6th Circuit, 2022.
2 Major Takeaways for Employers
First, you generally aren’t required to hire an outside investigator to handle harassment complaints. Although the HR generalist in Burns’ case wasn’t a perfect investigator, she started reviewing the security footage within a day after the initial harassment incident and set up employee interviews as soon as possible without interfering with company operations. All of the available information was thoroughly reviewed, and the victim was regularly updated.
Second, the onboarding procedure for all employees should include information about your harassment and discrimination policies and require employees to attest to their understanding of the standards. Berry Global’s strong onboarding system and handbook acknowledgement made it unnecessary for the 6th Circuit to resolve a factual disagreement about whether refresher training was necessary to address the company’s harassment and discrimination policies. After all, employees were already on notice.
For more information about creating or revising your harassment and discrimination policies or investigating those kinds of complaints, please contact attorneys John T. Below or Alexander J. Burridge with Bodman PLC in Troy, Michigan, at firstname.lastname@example.org or email@example.com.