Employee Entitled to Trial on Racial Harassment Claim

By Michael Malone Jan 21, 2016
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A black employee is entitled to a trial on her claim of a racially hostile work environment, the 10th U.S. Circuit Court of Appeals ruled. The appellate court, however, upheld the district court’s dismissal of the worker’s retaliation claim.

Shawron Lounds, a customer service representative, was the only black employee working at the Wichita, Kan., office of Lincare Inc., a provider of at-home medical services. She claimed that immediately after she was hired in September 2011, she was subjected to racial epithets and was repeatedly faced with racially and culturally insensitive and offensive questions and comments about black people.

Lounds also alleged that her supervisor, Suzanne Kraft, did not hire a black male job candidate because the supervisor said that the candidate “looked like a convict.”

Lounds complained to management officials in late January 2012, and Lincare’s director of employee relations obtained from her a list of the incidents of offensive behavior to which she had been subjected. Three days later, on Jan. 30, Lincare issued written warnings to Kraft and to two nonsupervisory co-workers. On the same day, Lincare’s director of employee relations led a short in-service training program on the company’s anti-discrimination/anti-harassment policy for the employees in the Wichita office.

Lincare claimed that after it disciplined the three employees, Lounds did not report any new offensive racial behavior. Lincare contended that this was evidence that its corrective actions were effective. Lounds contended that at least some of the racially offensive commentary continued.

On April 6, 2012, Lounds filed a race discrimination charge with the Kansas Human Rights Commission. On April 26, 2012, Lincare issued Lounds a reprimand for excessive absences (16 unscheduled absences since September 2011). Lounds responded by claiming that the disciplinary action was retaliatory and filed another charge of discrimination with the Kansas Human Rights Commission, this time alleging retaliation.

Lincare disciplined Lounds again on June 22, 2012, for excessive absenteeism. In July 2012, Lincare issued Lounds a final written warning for excessive absenteeism. Lounds responded to both instances of disciplinary action by claiming they were retaliatory. Lincare, on Sept. 24, 2012, terminated Lounds’ employment, noting that Lounds had missed seven days of work following her final written warning, that she had missed 34 days since being hired, and that 20 of those 34 absences had been unscheduled.

In March 2013, Lounds filed a lawsuit alleging a racially hostile work environment and claiming that she was disciplined and eventually terminated in retaliation for complaining about a racially hostile work environment. The district court ruled in favor of Lincare on the hostile work environment claim and the retaliation claim, dismissing both claims.

On appeal, the 10th Circuit reversed the decision of the district court on the hostile work environment claim while upholding the district court’s decision on the retaliation claim. The 10th Circuit noted that the district court had erroneously focused on the intent of the alleged harassers rather than on the subjective and environmental effects of the harassers’ conduct. The 10th Circuit emphasized that the “totality of the circumstances is the touchstone of a hostile work environment analysis.”

In upholding the district court’s dismissal of Lounds’ retaliation claim, the 10th Circuit determined that Lincare had made repeated efforts to address a mounting attendance problem, that Lounds had a well-documented track record of flouting the company’s attendance policies, and that Lounds failed in her effort to prove that Lincare’s stated reason for disciplining and ultimately terminating her was pretextual.

Professional Pointer: This case shows the importance of maintaining a professional work environment free from ridicule, slurs and any jokes that may cause discomfort. This can and should be accomplished through regular employee training, reinforcing employer policies prohibiting offensive conduct, empowering employees to speak up immediately whenever they encounter or observe offensive conduct occurring in the workplace, and insisting on a high level of professionalism from all employees within the organization.

Michael Malone, is a partner/member with Malone, Thompson, Summers & Ott LLC, the Worklaw® Network member firm in Columbia, S.C.

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