Dual race and gender harassment case goes to trial

The rare case alleging racial and gender harassment is going to trial in the Southern District, now that the Court of Appeals has reversed summary judgment in this employment discrimination case.

The case is Williams v. Consolidated Edison of New York, decided on November 27. The Court of Appeals issued this decision as a summary order, an odd choice considering it reversed summary judgment and the case raises some interesting legal issues. The precedential value of summary orders is limited, but it's always worth noting how the Second Circuit views these cases. The Court summarized the nature of the hostile work environment as follows:

Williams provided evidence of the following treatment or conduct over the course of approximately three years at the company: (1) one supervisor, John Dekanchuk, referred to Williams as a “black bitch” on more than one occasion and Fernandez, another supervisor, referred to her as a “bitch”; (2) Dekanchuk directed gender-based verbal abuse at Williams and Howe; (3) Dekanchuk insinuated that Williams and Oliver Jones were having a sexual relationship; (4) several male co-workers repeatedly used offensive and derogatory terms for women, such as “bitch” and “cunt”; (5) women encountered pornographic materials in the workplace on at least several occasions; (6) Williams and Jackie Howe experienced tampering and sabotage of their equipment; (7) male co-workers were unwelcoming to women and commented that they did not belong in the Brooklyn Flush unit; (8) male workers sought to avoid shifts with women and supervisors would honor their requests; (9) at least one employee made comments to the effect that supervisors should let the men know when women were menstruating; and (10) women were not provided with adequate locker room facilities for months, until October 2001, although the men were. In addition, one of Ms. Williams’s coworkers, Susan Kartell, states that she, too, was sexually harassed, including that she was called a “bitch” and a “cunt” on a regular basis, that supervisors ignored her complaints about this verbal abuse, and that one supervisor threatened to suspend her from her job if she continued to complain.

If credited by the jury, this evidence supports a finding that Williams was subjected to a hostile work environment on account of her gender. The Court of Appeals also found that the jury could find that Williams was subjected to a racially hostile work environment: "One deponent testified that Dekanchuk and Steve Raft, a coworker, used the word 'nigger' and that other employees used racially offensive language such as 'boy' to talk down to black employees." This case raises a few issues that surface from time to time: (1) dual sexual and racial hostile work environment claims for the same plaintiff and (2) the finding that co-workers who use the word "nigger" automatically create a hostile work environment.

The plaintiff may hold Consolidated Edison liable for this harassment. This portion of the decision is most interesting in that, while the company did not completely ignore the complaints of workplace harassment, it did not take the complaints seriously enough. On the racial harassment, "several of Williams’s co-workers verified her allegations that men sought to avoid working with women and supervisors honored their requests and that African-American employees were sent more frequently to high-crime neighborhoods. Yet inexplicably, the report summarizing the investigation did not discuss these co-worker accounts in reaching its conclusion that there was no record of discriminatory work assignments." Without any evidence that Con Ed followed up on this information, the jury can find that the company failed to take appropriate remedial action in response to Williams's complaints. The racial harassment can also be imputed to Con Edison because the human resources officer arguably performed a perfunctory investigation into Williams' complaint.

This issue of the adequacy of the employer's response on the harassment claims is ultimately for the jury: "although “[a] fact-finder may well conclude that [the employer]’s responses were reasonable and adequate,” we cannot “say as a matter of law that the record evidence compels only that result.”