Friday, June 15, 2012
Bananas Show Racial Intolerance Says 11th Circuit
In vacating summary judgment granted to UPS by the District Judge, the 11th Circuit Court of Appeals on June 11th set forth the prima facie standard for racially hostile work environment employer liability. An employer is liable if the employee proves that: (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his membership in the protected group; (4) it was severe or pervasive enough to alter the terms and conditions of employment and create a hostile or abusive working environment; and (5) the employer is responsible for that environment under a theory of either vicarious or direct liability.
The Court noted that the use of the term monkey, and the connection to bananas, have been part of actionable racial harassment claims across the country. In seizing on the undisputed “banana” facts, the 11th Circuit held, “This combination of facts suggests the bananas were not appearing on Mr. Jones’s truck by mere chance. When viewed in its totality, this evidence would allow a rational trier of fact to conclude that someone was placing the bananas on Mr. Jones’s truck to send a message of racial intolerance.” The Court found there were both subjective and objective components in support of Jones’ claim that his race-based harassment was so severe or pervasive as to alter his conditions of employment.
Common Sense Counsel: Be careful what you let your employees wear and eat at work. Allowing comments, symbols (banana peel & confederate shirts) or conduct based on race can create an intimidating, hostile or offensive work environment and place an employer at risk of an EEOC Charge or costly litigation. Having a legally compliant anti-harassment policy, annual company wide employee training, prompt and effective investigation of complaints and taking proper remedial actions are keys to good risk reduction.
Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C., a member of the ABA Section of Labor and Employment Law, and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at firstname.lastname@example.org or 334-501-1540 or www.AlabamaAtWork.com. Alabama Immigration updates at www.ImmigrationAlabamaLaw.com.