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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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In a case involving an employee's complaint that an Instagram photo posted by her co-workers compared her to a fictional chimpanzee from the movie "Planet of the Apes," liability may be imputed against the employer where "the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it," according to a federal district court.
A $275,000 award for harassment was upheld, even though the employer investigated the Instagram post and reprimanded the responsible employees, because the employer failed to take action on the ensuing hostile work environment, according to the court.
Mermaid Manor Home for Adults employed Lisa Fisher, who is black, as a home health aide. Fisher's co-workers included Yvonne Kelly, a black Jamaican woman, and Lisi Laurent, a black Haitian woman. There was tension in the workplace between black employees from the United States and workers whose origins were in the Caribbean and the West Indies, disparagingly referred to as "the coconuts" by some employees.
Fisher complained to Mermaid Manor after Kelly and Laurent posted a photo on Instagram comparing Fisher to a fictional chimpanzee from the movie "Planet of the Apes." Mermaid Manor, which had an anti-harassment policy and a complaint process, immediately investigated the Instagram post. After concluding that Fisher's allegations had merit, Mermaid Manor spoke with Kelly, verbally reprimanded Laurent and conducted an in-service training regarding its anti-harassment policy.
However, these actions did not eliminate the hostile work environment. The court said that following Fisher's complaint, Kelly proceeded "to ridicule [Fisher] continuously and unrelentingly" by, among other things, ripping up Fisher's patient book, destroying the beds of her patients, and laughing at or ridiculing Fisher in front of co-workers. Despite Fisher's complaints, Mermaid Manor "took no meaningful action to protect [her] and to rectify the hostile work environment that resulted from Ms. Kelly's unceasing harassment."
Fisher filed a complaint with the Equal Employment Opportunity Commission alleging a racially hostile work environment in violation of Title VII of the Civil Rights Act of 1964. After receiving a right-to-sue notice, she filed a civil complaint with the U.S. District Court for the Eastern District of New York asserting Title VII and state law hostile work environment and retaliation claims. Following trial, a jury unanimously found in favor of Fisher, granting her $25,000 in actual damages and $250,000 in punitive damages.
Post-trial, Mermaid Manor moved for judgment as a matter of law or, in the alternative, a new trial. The key ground for seeking judgment as a matter of law was Mermaid Manor's contention that Fisher failed to prove that it should be found liable for a hostile work environment created by co-workers.
The district court explained that Fisher's burden was to "demonstrate a specific basis for imputing the conduct creating the hostile work environment to the employer." That burden requires evidence that the employer "provided no reasonable avenue for complaint or knew of the harassment but did nothing about it."
Although the evidence clearly showed that Mermaid Manor had a policy and complaint process, that it investigated the Instagram complaint, and that it took responsive action following the investigation, the court held that Mermaid Manor's response failed to address the hostile work environment. "As became clear during trial, the Instagram photo was merely a symptom of the hostile work environment created by Defendant, and treatment of the symptom failed to cure the disease: 'hostility' between African American and Caribbean workers," the court said. The fact that Kelly continued to take hostile actions toward Fisher showed that Mermaid Manor had "overlook[ed] the appropriateness of its remedial action."
[SHRM members-only HR Q&A: Harassment: What is meant by the term "reasonable person"?]
Fisher v. Mermaid Manor Home for Adults LLC, E.D.N.Y., No. 14-CV-3461 (Dec. 16, 2016).
Professional Pointer: An employer's remedial actions need to be broad enough to address the root source of any hostile actions and not just a discrete hostile action such as the Instagram photo, which was merely a symptom of the hostile work environment.
Michael G. McClory is an attorney with Bullard Law, the Worklaw® Network member firm in Portland, Ore.
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