Despite mountains of damning evidence, one employer avoided losing a racially hostile workplace lawsuit. The ruling serves as a reminder to HR pros everywhere on the importance of clear policies and consistent follow-through.

In McKinney v. G4S Government Solutions, Inc., McKinney, an African-American employee, claimed his employer, a security and fire support services company, essentially fostered a racially hostile work environment.

To back up his claim, McKinney cited a litany of specific examples including:

  • a co-worker using the n-word in his presence
  • being told by a fire chief that the company had hired a “colored boy”
  • a co-worker showing McKinney a noose at work, while another co-worker said “I know what to do with that. I can use that around my house” (in reference to his African-American neighbors), and
  • seeing a co-worker display a white sheet over his head so it formed a triangle-shaped cylinder that looked like a KKK hood.

2 key criteria

Based on the aforementioned evidence, you’d think the employee had a slam-dunk case against G4S. After all, these allegations make it sound as if the company culture supported an openly hostile workplace.

But what if the behaviors were out of the company’s hands — as G4S claimed here? As The Employer Handbook reminded HR pros, as long as an employee isn’t subjected to any tangible employment action, a company can avoid liability by satisfying two key criteria as soon as it finds out about workplace harassment. Those criteria:

1. The company must exercise reasonable care to promptly correct any harassment it’s made aware of. The company here had a clearly worded anti-discrimination policy in place. Then, as soon as the complaints were made, the company investigated and took action based on what it found — some employees were required to undergo diversity training, another was suspended and one was fired for the offenses. These steps were looked on favorably by the court.

2. The employer must also show that the victim/employee failed to take advantage of any preventive or corrective opportunities it provided —  or failed to otherwise avoid harm. The court believed the company also satisfied this criteria because McKinney didn’t report the problem right away — even though the company’s anti-harassment policy required an “immediate” report to a supervisor, manager or HR. McKinney claimed he waited because of a fear of retaliation, but the court felt it wasn’t enough and said:

“Failure to report harassment because of a generalized fear of retaliation or belief in the futility of reporting harassment deprives the employer of an opportunity to take corrective action and does not justify the failure to report.”

Result: The employer was able to satisfy the two-criteria test and get the suit thrown out.

Despite winning the suit, it probably still wouldn’t hurt this company to roll out some mandatory anti-discrimination training.

Cite: McKinney v. G4S Government Solutions, Inc.



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