Employee Claim of Harassment from Customer Goes to Trial

By Jeffrey Rhodes May 17, 2017

​A black employee of a New York City clothing store can go to trial against her employer on claims of racial harassment based on a customer's racist conduct, the U.S. District Court for the Southern District of New York ruled.

In June 2012, BCBG Max Azria Group LLC employed Danielle Creacy as a part-time stylist in its Greenwich, Conn., store. BCBG promoted Creacy in 2013 and transferred her to its store in Scarsdale, N.Y., which is located on the main floor of the Lord & Taylor store in the Vernon Hills Shopping Center.

On Dec. 26, 2013, Creacy encountered a customer named Lexi Peng at the Scarsdale store. At that time, Creacy oversaw the BCBG shop within Lord & Taylor and was working with other black sales associates. Creacy was at the register speaking with the associates when she heard Peng, an Asian woman, yell "Move" twice. Creacy asked if Peng was being helped, and Peng began yelling at her. Creacy asked Peng to give her a moment and turned back to face the associates. Peng proceeded to elbow Creacy, stomp on her right foot and yell comments such as "You people," "You can't be manager, your kind," and "You call security, they are going to do nothing for you people." At the same time, Peng pointed to the back of her own hand, at her skin, which Creacy understood to be a reference to her own skin color. While Peng yelled these comments, she was holding a clothes hanger in Creacy's face.

Creacy called Shannon O'Connell, Lord & Taylor's loss prevention manager, and asked her to remove Peng from the store. When O'Connell arrived, she asked Peng to calm down because her tone was unacceptable and she was creating a scene. O'Connell told Peng that if she did not lower her voice, she would be asked to leave. Creacy reported the incident to Jessica Ramirez, who was serving as the acting district manager. Creacy claimed that Ramirez expressed shock that the customer was able to remain in the store and continue shopping.

Ramirez advised Creacy to send an e-mail describing the incident, which Ramirez forwarded to a BCBG loss prevention manager and a BCBG district manager. The BCBG managers did not respond to Ramirez's e-mail. That same day, O'Connell also called one of the managers, who assured her that he would follow up and get back to her. He did not.

On Jan. 5, 2014, Peng returned to the Scarsdale store to return BCBG merchandise. Upon seeing Peng, Creacy stopped and asked Peng to give her a moment. Creacy called a Lord & Taylor's security department employee and asked him to come to the BCBG register. Peng continued to say things like "You people always make it hard for me" and called Creacy a sexist epithet. Creacy had another sales associate process the return and Peng continued shopping.

A Lord & Taylor human resource manager approached Peng and told her not to return to the BCBG register or touch any employees. The manager told Creacy that if Peng returned to the store in the future, Creacy should go sit in the back room. Creacy continued to report the incidents to others at BCBG, including a vice president, and was told that BCBG could not restrict the customer's shopping because Lord & Taylor controlled the premises. Creacy requested a transfer and in April 2014 received a job offer as a sales supervisor at another store.

Creacy filed suit against BCBG, Lord & Taylor and Peng, and claimed that BCBG subjected her to a racially hostile work environment, retaliated against her and compelled her to quit ("constructive discharge") in violation of federal and state human rights laws, and denied her the use of a place of public accommodation. BCBG moved for summary judgment on Creacy's claims and to dismiss her demand for punitive damages.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

The court found sufficient evidence of racial motivation and severe and pervasive conduct to support Creacy's harassment claim. The court adopted the Equal Employment Opportunity Commission's rules concerning company liability for customer harassment, which require that the employer be negligent in failing to provide a reasonable avenue for complaint about the customer conduct. The court further found that a jury could view BCBG as having intentionally disregarded Creacy's complaints, supporting a constructive discharge claim. The court thus allowed the claims to proceed to trial.

Creacy v. BCBG Max Azria Group LLC, S.D.N.Y., 14 Civ. 10008 (ER) (March 31, 2017).

Professional Pointer: Harassment by customers presents a unique challenge for retail stores, which are open to the public and depend upon customer sales. These stores can face liability when an employee has reported discrimination and harassment by a customer and the store fails to protect its employee and prevent further harassment by customers.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.


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