Anonymous incidents of harassment pose unique challenges for employers who must work both to identify the perpetrator and to protect victims from a faceless, but ominous, threat. Indeed, anonymity may actually heighten what is required of an employer; particularly where the harassment occurs in a secure area accessible only to employer authorized individuals.
The Fourth Circuit’s July 1, 2015 opinion in Pryor v. United Airlines, Inc., considered the question of when an employer may be held liable for a hostile work environment created by an anonymous actor. The district court had concluded that although Plaintiff had been subjected to a racially hostile work environment, it granted summary judgment to the employer, United Airlines, holding that the offensive conduct could not be imputed to United. The appellate court reversed.
The harassment suffered by the plaintiff in this case was particularly egregious and offensive. For that reason, some details are omitted.
Plaintiff, who is African American, joined United Airlines in 1984 and began working out of Dulles International Airport in Washington, D.C in the early 1990s. In January 2011, she found a paper note in her company mailbox claiming to be a “Hunting License” declaring that the holder was “licensed to hunt & kill” African Americans “during the open search hereof in the U.S.” The note also purported to give “the holder permission to hunt day or night, with or without dogs.” The note included a hand-drawn image of a person hanging from a pole or tree, with the inscription “this is you.” The mailbox was located in a secure area of the airport accessible only to authorized personnel. Upon finding the note, Plaintiff was shaken and afraid and immediately showed the racist death threat to her supervisor, Richard Reyes, who told her that he was “sorry” but there was “not much” United could do because there were no security cameras in the mailbox area.
United maintained an official harassment and discrimination policy, which required employers to take allegations of harassment “seriously” and to “[c]ontact the Employee Service Center immediately to report the complaint.” The policy also stated that the ESC “would be responsible for initial in-take of the complaint” and would forward it to “an investigative team for investigation and follow-up.” Under the policy, supervisors aware of an incident were required to “immediately report it to the ESC.” Despite the policy, Reyes did not contact the ESC. Instead, he gave the note to another manager who also failed to contact the ESC. No employee interviews were conducted and no physical evidence was preserved. Also, despite the occurrence of a possible hate crime involving a threat of violence at a major airport, United never reported the incident to law enforcement.
As Plaintiff’s supervisors knew, the note was not the first incident of racism reported at Dulles involving Plaintiff. Previously, Plaintiff had been questioned by a colleague about rumors circulating among United employees that African American flight attendants were engaging in prostitution during layovers in Kuwait. Management was also aware that several months prior to Plaintiff’s discovering the note in her mailbox, a racist message had appeared in the flight attendants’ break room in Dulles. Although Plaintiff did not see the message, she was aware of it. The incident was not documented and no employee interviews were conducted.
The incidents did not stop there. Months later, Plaintiff discovered a nearly identical note in her mailbox and a subsequent daily audit of employee mailboxes revealed that five other employees received similar notes. Although United ultimately sought the help of police and installed temporary security cameras in the mailbox area, no perpetrator was ever identified. United thereafter closed its investigation and Plaintiff transferred to George Bush International Airport in Houston. Plaintiff reported no further incidents.
Plaintiff’s compliant against United alleged discrimination and creation of a hostile work environment under Title VII. Liability for harassment by coworkers or third parties arises when the employer “knew or should have known about the harassment and failed to take effective action to stop it by responding with remedial action reasonably calculated to end the harassment.” As reflected in the court’s opinion, the fact that the harasser is anonymous does not lessen the employer’s responsibility to act, but is a circumstance that informs the determination of whether the response is reasonably calculated to end the harassment at issue.
The Fourth Circuit held that given the threat’s severity, a reasonable jury could find that United’s response to the initial threatening note was neither prompt nor reasonably contemplated to end the harassment. Facts the court focused on include failure to contact law enforcement, failure to escalate the matter to the ESC in violation with United’s written policy, failure to inform corporate security and failure to promptly install cameras or other monitoring devices.
The Fourth Circuit rejected the district court’s conclusion that liability could not be imputed because there was no guarantee that additional actions by United would have resulted in the perpetrator’s discovery. Under the appellate court’s reasoning, a hostile work environment plaintiff has no burden to demonstrate that certain actions, had they been taken would have stopped the harassing conduct. Rather, the question of liability turns on whether the employer’s actions in response was “reasonably calculated” to end the harassment—regardless of whether it was actually successful.
The takeaway is that employers must be aware that they have a duty to protect employees from anonymous harassers and that the standard necessary to satisfy that duty may be even higher than when the identity of the harasser is known.
Contributor: Corbett H. Williams, Attorney at Law | Weintraub Tobin