Harassment and Sexual Abuse of FPD Officers

Fayetteville City Council Notified of Racism Towards Police

Fayetteville City Council Meeting June 11, 2012

90+ Incidents of Racism / Sexual Harassment Towards Police Officers at End of Article Below

In this writing the terms “officer”, “police officer”, “employee”, “civilian employee”, “city employee” or “municipal employee” are synonymous.

The terms ” third party | non-employee”, “citizen”, “customer”, “client”, “vendor”, “victim”, “witness”, “violator”, or “arrestee” are synonymous.

The terms “manager”, city manager, “law enforcement management”, “supervisor”, municipality, organization, or “police department” are synonymous.

WARNING: FOR THE PURPOSE OF ACCURACY AND TO PREVENT MISUNDERSTANDING, FOUL LANGUAGE HAS NOT BEEN CENSORED. IF YOU CONTINUE TO READ PAST THIS POINT YOU ARE WILLFULLY ACCEPTING EXPOSURE TO FOUL AND HATE-FILLED LANGUAGE EXPRESSED BY CITIZENS OF THE FAYETTEVILLE COMMUNITY. 

The Question: Are Police Officers (or any municipal employee) required to accept sexual harassment or discriminatory abuse from violators, prisoners, customers, or any other third party | non-employee entity because it is “inherently part of the job”, or it may threaten a customer relationship, or as a condition of continued employment at employer’s pleasure for any employer motive or rationale?

At a Department of Justice forum, when the question was posed; “Do we not as police officers have a right to expect to be treated decently by citizens, just as they expect us to treat them decently?”, this was the reply.

“I can answer up to, uhh, I can answer up to him. What’s expected of you is you act in a professional manner. You would go about business the way, uhhh, you would conduct business as a professional and we all know in this business you gonna have to have thick skin and that’s the bottom line there. And we can sit here, and we can say, well gee, we want that same respect. Well guys and gals, you know, that’s not gonna happen all the time. But what’s expected is that you act accordingly, the way it’s expected of a Fayetteville police officer. No more, no less. Period.”⁽¹⁾

Well, there is a little more. Our concern is that we do not want to see any department get into trouble for not adhering to federal and state requirements that they may not fully understand or be aware they need to fulfill namely, the Title VII requirements, Executive Orders, and other various Acts and North Carolina Statutes ^{(See Appendix III)} As we can see here, though unintentional, the response may very well expose the department to unnecessary liability, not to mention effectively communicates to the officer or city employee, that their employer does not care about the hostile environment in which they must work, a message that can only operate to exacerbate the adverse effects of that hostile environment.

Clearly, the question wasn’t answered as the question was about how citizens act towards police officers, and not how police officers are supposed to act. The police already know how they’re supposed to act and do so with alacrity and professionalism.

A better response would have been; “We strive to ensure fair treatment of employees at all times and to promote a satisfying working environment throughout our organization. ⁽²⁾ The City of Fayetteville and the Fayetteville Police Department will not tolerate harassment or discrimination of any kind towards any of its employees and will actively and aggressively pursue federal, state, and local, civil or criminal relief on its employee’s behalf if it occurs.”

Here’s Why

There are those in police management that would have you believe those police officers have no recourse or relief when they are discriminatively abused or sexually harassed in the performance of their duties. It is entirely unreasonable to expect that just because officers deal with society’s offenders that they need be subject to such abuse. There are those in police management that says that officers have to accept the abuse from a third party | non-employee harasser such as a traffic stop violator or arrestee as a “part of the job”. They would be wrong.

Municipalities and police departments have, until now, taken the path of greater ease and chosen to ignore the abuse that their police officers or other city employees are receiving. Many of the behaviors that police officers are exposed to go well beyond “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” and equates to the most reprehensible acts of harassment or discrimination possible. ^{(3, Appendix IV)}

Officers are exposed to comments such as “Fuck this I ain’t doing no more test for you nigga.”, “All niggers need to go back to Africa.”, “You’re a cracker ass mother fucker.”, “Fuck you white cracker.”, “Fuck You, you white bitch.”, “White fucking devil.”, “White piece of shit.”, “You’re just a stupid cracker bitch!”, “You fucking nigger, can’t tell me what to do!”, “Uncle Tom Token Nigga.”, and “Cracker honky white bitch.” These quotes are taken right out of Fayetteville Police Department reports ^{(Appendix IV)}. These are examples of the discrimination and harassment that police officers are expected to accept as just “part of the job”.

One of the chief complaints from citizens is that if the officer has a bad day that the officer takes it out on the citizens that they encounter. What is glossed over in this complaint is the fact the officer does not start out to have a bad day. The majority of the officers deemed as “having a bad day” results from encounters with discriminative abusive and sexually harassing citizens in the first place. This in turn translates to the next citizen the officer encounters not getting the best service they should have. The officer tries to put on the best face and give the best service they can, but the cumulative effect of such discriminative abusive and sexually harassing behavior on the part of the third party/non-employee harassers places a tremendous, and sometimes untenable, burdens on these officers. The officer feels trapped in humiliating insulting derogatory abuse from which there is no apparent relief with supervisors telling them incorrectly and callously they should have “thick skins” and just have to accept the abuse. This attitude appears to the officer to be just more abuse piled on an already untenable situation by their own employer who they correctly feel should be supporting, and more importantly, defending them.

Because of this lack of support officers [and other city employees] lose their tempers and make regrettable choices that may negatively affect their career because they believe that they have no appropriate effective outlet that can be relied on to at least have a reasonably positive impact to assuage their anger and frustration when third party | non-employees [customers] abuse them. Officers feel stressed and cannot perform to the best of their ability in such unfriendly surroundings. Abuse from a third party/non-employee harasser causes harm to their emotional stability and health.

There are certainly thousands of studies and anecdotal evidence in existence that have proven with certainty that there is a measurable debilitating effect when a person is exposed to cumulative abuse. It does not matter that the abuse is discriminatory, sexually harassing, or bullying. It does not matter if the abused is male or female, no one sex is better at receiving it than the other. It does not matter what an individual does for a living, being a police officer does not magically make one better at receiving abuse than others. Abuse is abuse.

Simple common sense dictates that the verbal abuse police officers are exposed to is dangerous to their mental and physical health. It is sufficiently significant in terms of its impact on the health and safety of officers as well as its both hidden and visible economic impact on municipalities and police departments. ⁽⁴⁾

Self-esteem is worn down, the sense of options evaporates, self-care is compromised, and the power of choice is eroded. Officers may experience clinical depression, sleep disorders, panic attacks, denial, chemical dependency, eating disorders, substance abuse, extreme codependency, and suicidal ideation or attempts. Some behavioral effects include low self-worth, irritability, being overly reactive, inability to trust others, aggression, engagement in risky behaviors, or inability to control emotions. The cumulative abuse received by officers also results in the inability to maintain relationships and contributes to the breakup of marriages.

In some cases, officers end up needing hospitalization, psychiatric treatment, or medication in order to cope with the abuse. Many officers simply transfer to another department where they receive the appropriate support from their employer or another job altogether as a mental and physical health saving measure. ⁽⁵⁾

Letting the officer be abused unchallenged only generates more problems, and sometimes costly problems for municipalities and police departments outside of being in violation of Title VII. It can have a drastic effect on retention. It increases the cost of health benefits. It is a significant factor in complaints against police departments as a result of police officers becoming overly reactive and aggressive due to the accumulation of departmentally disregarded hostile abuse from citizens.

A work environment is shaped by the accumulation of abusive conduct, and the resulting harm cannot be measured by carving it ‘into a series of discrete incidents. ⁽⁶⁾ The cumulative effect as a whole often proves to be far more injurious to the recipient [and ultimately to the municipality or police department] than the apparent damage inflicted by each discrete incident. The deleterious effect on an individual’s mental stability and health is geometrically proportional rather than linear in nature.

Think of cumulative abuse in this aspect. Say I receive a penny every day for a month. At the end of the month, I would have 31 pennies. This would be linear. Now, say I receive one penny on the first day, two pennies on the second day, four pennies on the third day, and continue to double each day for thirty days. This would be geometrically proportional which is how accumulative abuse affects people. The whole of the abuse is far greater than the apparent sum of the contributing individual episodes. At the end of the month, I would have $5,368,709.12, about the same amount awarded to each of four women by the courts against Ralph’s Supermarket Chain for sexual harassment.

Many municipalities and police departments are so driven by customer satisfaction that they forget that they have a duty and responsibility to their officers and city employees. There is a pervasive and dangerously unethical mindset that municipal employees, police or otherwise, may be sexually harassed, discriminated against, or otherwise abused by a third party | non-employee harasser and that they should be “thick-skinned” and just accept it or risk ridicule and scorn. There is even an implied possibility of a loss of continued employment under the guise of the employee [officer] somehow not being professional if they do not allow themselves to be harassed or discriminated against without complaint or comment. ⁽¹⁾

It is obviously reprehensible and makes no sense to allow “racism”, the abusing of an individual because of the individual’s belonging to a particular race. It logically follows then that to allow “occupationism”, the abusing of an individual because of the individual’s belonging to a particular occupation [in this case law enforcement], is equally senseless and reprehensible.

Municipalities and police departments have a tendency to focus only on sexual harassment and the “Americans with Disabilities Act” and give the other forms of harassment or discrimination only a token mention and cursory acknowledgment at most. In some organizations, including the City of Fayetteville and the Fayetteville Police Department, you would be hard-pressed to find a comprehensive written policy on discrimination regarding race, age, color, creed, national origin, or religion. Municipalities and police departments, including the City of Fayetteville and the Fayetteville Police Department, give third party/non-employee harassment no acknowledgment whatsoever. This could prove to be an extremely costly mistake on their part. Harassing conduct need not be sexual to prove a hostile environment claim. Harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex either. ⁽⁷⁾

Often municipalities and police departments attempt to say that Title VII does not apply to a third party/non-employee harasser but this is not true. EEOC documentation clearly dictates that the harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. ⁽⁸⁾ Uniformly, other circuit courts, including the 4th Circuit Court ⁽⁹⁾, have applied the same rule that employers may be held liable under Title VII for harassment by third parties when that conduct creates a hostile work environment. ⁽¹⁰⁾

Because harassment by customers/violators is more analogous to harassment by co-workers than by supervisors, the courts have held that the same standard of liability applies to both coworker and customer harassment. Thus, employers may be held liable in these circumstances if they fail to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.

The courts have said that it is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer. Employees are often harassed at work by individuals who are not employees. That numerous courts hold that employers are liable for harassment by third parties is an important affirmation of this particular aspect of employer liability under Title VII. ⁽¹¹⁾ The recent decision by the 4th Circuit Court makes clear that once an employer is placed on notice of harassment of its employees arising from any source, it is under a legal obligation to promptly stop the harassment, even if this means threatening a customer relationship and that the solution implemented by the employer cannot place the employee in a disadvantageous situation as a result of the complaint. ⁽¹²⁾

While Title VII of the 1964 Civil Rights Act has made such behavior between supervisors and employees, third party non-employees and employees or even co-employees, clearly off-limits, municipalities and police departments are still reluctant to tell their citizens [customers] to treat their employees with dignity and respect even though they are required to do just that. It is a myth that a municipality or police department is not liable for the conduct of customers, vendors, or non-employees if they create an offensive work environment for employees. Municipalities and police departments are responsible for the inappropriate actions of anyone who comes into contact with the work environment.

In the third-party harassment context, third parties [customers] may feel that because they are in a relatively powerful position, they can impose themselves on officers. They may additionally feel the officers are somehow obligated to tolerate abusive conduct. ⁽¹³⁾ This attitude is further exacerbated by the failure of municipalities and police departments to take appropriate action when officers and city employers experience discriminative abusive and sexually harassing behavior on the part of third party | non-employee. In a recent Department of Justice forum police management said, “…we all know in this business you gonna have to have thick skin and that’s the bottom line there. And we can sit here, and we can say, well gee, we want that same respect. Well guys and gals, you know, that’s not gonna happen all the time.” Remarks such as this serve only to reinforce the attitude that it is permissible for citizens to subject police officers, and other city employees, to abusive conduct and that they, the citizens, have such tacit and explicit permission to act in such an abusive manner towards police officers and city employees directly from police management, and by proxy, the city manager and city council members.

“Well guys and gals, you know, that’s not gonna happen all the time.” – and when it doesn’t happen then it becomes incumbent on municipal and police management to investigate and attempt to combat ⁽²⁰⁾ that disrespectful abuse which equates to discriminatory or sexually harassing abuse.

Many times officers are left to handle harassment and discrimination on their own because municipality and police departments prefer not to address these instances of harassment and discrimination. Law enforcement management says that such abuse is an expected part of the job. Municipalities and police departments state simply that it is expected that the officers have thick skin and accept the abuse without comment or relief. They state as such it should not be incumbent on them to have to deal with such complaints from their employees. Law enforcement management says that they have no control over the perpetrators of such abuse and therefore are not liable.

In the third-party harassment context, third parties may feel that because they are in a relatively powerful position, they can impose themselves on employees. They may additionally feel … the employees are obligated to tolerate abusive conduct. Toxic Employee at 106.

The courts have stated that “Because liability is direct rather than derivative, it makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer. Ability to ‘control’ the actor plays no role.” ⁽¹⁴⁾ A classic third-party harasser case talks about how the third-party doesn’t even have to be human; in Dunn v. Washington County Hospital (7th Cir. 2005) the court wrote…Indeed, it makes no difference whether the actor is human. Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing. The Hospital would be responsible for the decision to expose women to the working conditions affected by the macaw, even though the bird (a) was not an employee, and (b) could not be controlled by reasoning or sanctions. It would be the Hospital’s responsibility to protect its female employees by excluding the offending bird from its premises.”

In defense of that rule, Judge Easterbrook wrote, “Because liability is direct rather than derivative, it makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer. Ability to ‘control’ the actor plays no role.” Dunn v. Wash. County Hosp., 429 F.3d 689, 691 (7th Cir. 2005). Judge Easterbrook explained that employees are not pawns whose conduct uniquely subjects an employer to liability for their harassment of another employee while the employer is absolved of any liability for the conduct of third-party harassers: “Employees are not puppets on strings; employers have an arsenal of incentives and sanctions (including discharge) that can be applied to affect conduct. It is the use [of] (or failure to use) these options that make an employer responsible-and in this respect [third parties] are no different from employees. ” Id. To illustrate this point, Judge Easterbrook famously used the colorful analogy of managing a macaw: Indeed, it makes no difference whether the actor is human. Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing. The Hospital would be responsible for the decision to expose women to the working conditions affected by the macaw, even though the bird (a) was not an employee, and (b) could not be controlled by reasoning or sanctions. It would be the Hospital’s responsibility to protect its female employees by excluding the offending bird from its premises.

It is a myth that a supervisor is not obligated to take action unless a formal complaint is made. Any manager or supervisor who notices harassing conduct must act even if the victim withdraws the complaint or leaves the workplace. This liability is an extension of the municipality’s or police department’s duty to maintain a working environment free from unlawful harassment and may require the municipality or police department to exercise control over individuals not under its employ. ⁽¹⁵⁾ Municipality’s and police department’s claims that they have no control over the third-party | non-employee abuser and thus are not required to act on any harassment or abuse exhibited to the officer or city employee is simply not true.

This argument has been dealt with and rejected by the courts in the past. Judicial notice has been taken that; “failure to investigate gives tactic support to the discrimination because the absence of sanctions encourages abusive behavior.” ⁽¹⁶⁾ The courts have clearly said that it does not matter where the harassment or discrimination comes from. The only thing that matters is how the municipality or police department handles the problem. ⁽¹⁷⁾ The courts have also held that a harasser’s status as a non-employee does not automatically shield the employer from liability of harassment. ⁽¹⁸⁾

Under some circumstances, an employer may also be liable for the harassment of its employees by a non-employee, such as a customer or a client. Because harassment by customers is more analogous to harassment by co-workers than by supervisors, we hold the same standard of liability applies to both coworker and customer harassment. Thus, employers may be held liable in these circumstances if they fail to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known. This liability is an extension of the employer’s duty to maintain a working environment free from unlawful harassment and may require the employer to exercise control over individuals not under its employ. EEOC, Enforcement Guidance 915.002 (6/18/99). 92 347 F.3d 1272 (11th Cir. 2003). 93 164 F.3d 1361 (11th Cir. 1999). 94 Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir. 1998). 95 29 C.F.R. § 1604.11(d). 96 Lockard v. Pizza Hut, Inc, 162 F.3d 1062, 1074 (10th Cir. 1998).

Judicial notice has been taken that; “failure to investigate gives tactic support to the discrimination because the absence of sanctions encourages abusive behavior”) United States v. City of Buffalo, 457 F. Supp. 612, 632-35

“An employer is responsible for every ‘tangible employment action (hiring, firing, promotion or its absence, wage-setting, and the like) plus any other discriminatory term or condition of employment that the employer fails to take reasonable care to prevent or redress,” the court said The court reasoned that because liability is direct rather than derivative, it makes no difference whether the persons whose acts are complained of is an employee, an independent contractor, or a customer. Employers can use multiple incentives and sanctions (including discharge) to affect conduct. It is the use, or failure to use, these options that make an employer responsible – and in this respect, independent contractors or customers are no different from employees. The court noted that the employer’s responsibility is to provide its employees with nondiscriminatory working conditions. “The genesis of inequality matters not; what does matter is how the employer handles the problem.” Employers should be cognizant that it is the employer’s responsibility to provide employees with nondiscriminatory working conditions. 429 F. 3d 689 – Dunn v. Washington County Hospital Accord, Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072-74 (10th Cir. 1998)

In Menchaca, the court held that a harasser’s status as a non-employee does not automatically shield the employer from liability of harassment. – Menchaca v. Rose Records, 1995 WL 151847 (N.D. Ill. 1995)

This apparent attitude that there is a lack of recourse and redress is an attitude that is fostered by law enforcement management. However, this alleged lack does not exist. There is relief available and it is incumbent on the municipality or police department to provide it. The courts have rejected employer’s arguments that they could not be held liable for the actions of independent third parties, stating that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. ⁽¹⁹⁾

Such an exemption does not exist in that it is not possible for a municipality or police department to articulate why it would be permissible for a third party | non-employee to say to a police officer, “Fuck you, you cracker ass Wonder bread bitch!”, but insist it is not permissible to say Fuck you, you cracker ass Wonder bread bitch!” or “I don`t have to listen to a paid fucking Nigger!” to maybe a City Council member or maybe a visiting city manager from another city. If such a thing should happen police would be called, reports demanded and certainly demands for action to be taken would be insisted upon. If such a thing happened in the public’s eye there would be media outrage and even more stringent cries and adamant demands for action to be taken.

If a police department lieutenant were to say “Fuck you, you cracker ass Wonder bread bitch!” to a civilian employee in the police evidence room or maybe a visiting city manager from another city, for instance, there would be severe repercussions for that lieutenant to be sure.

These quotes are actual documented quotes in Fayetteville Police Department reports. ^{(See Appendix IV)} These statements were actually made to Fayetteville Police officers. There was no shock and flabbergasted astonishment that most assuredly would have been present had such statements been made to a visiting public figure or a City Council member. There is no hue and outcry from the NAACP or from the editor of Fayetteville Observer and Times, Tim White. There is certainly no appropriate response from city or police management as required by Title VII. If it is vile and hurtful to one then it is just as vile and hurtful to another. Occupation does not make it any less so. One would be exceedingly obtuse and injudicious to think so.

It should be noted that the courts have defined this as an employee right, as opposed to a retractable or deniable privilege subject to an employer’s [municipality’s or police department’s] whim. In fact, our own 4th Circuit Court in a recent decision held that an employer has a responsibility to investigate and attempt to combat third-party harassment of which it is aware. ⁽²⁰⁾

Title VII, by design, is structured to encourage employees to report harassing conduct before it becomes severe or pervasive. ⁽²¹⁾ As the Supreme Court stated, “Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms.” ⁽²²⁾ Failure to do so will make it difficult for an employer to prove that it exercised reasonable care to prevent and correct harassment.

Although some harassment by violators cannot be reasonably avoided, municipalities and police departments, on the other hand, cannot refuse to adopt reasonable measures to curtail harassment by violators. ⁽²³⁾ Municipalities and police departments cannot ignore their employees, scoff at them, or tell them to quit being such a “crybaby”. ⁽²⁴⁾ They must take remedial action which is “reasonably calculated to end the harassment.” ⁽²⁵⁾ They cannot avoid claims or complaints through the adoption of a “see no evil, hear no evil” strategy. ⁽²⁶⁾

Municipalities and police departments would be held to a stricter standard regarding “knowledge” of discriminatory or sexually harassing abuse. “I didn’t know” defenses within a police department would be very rare indeed. Knowledge can be imputed to an employer “if a reasonable person [employer], intent on complying with Title VII, would have known about the harassment”. ⁽²⁶⁾

This imputation is even more prevalent in police departments in that they are the epitome of information gathering, documenting, and dissemination. Instances of discriminatory harassment and sexual abuse towards the officer are continuously found in incident, crime, informational and other classes of police reports. These reports are regularly reviewed at a supervisory level ranging from the line sergeant to the Chief of Police which provides ample support [evidence] for an inference that notification to the employer (police department) has been met. ^{(26, Appendix IV)}

Just a cursory query of the Fayetteville Police Department’s database, from 2007 to date, resulted in 92 instances of exceedingly vile and discriminative harassing invectives directed at police officers. ^{(See Appendix IV)}

In that the courts have said that actionable discriminatory or sexual harassment is harassment that is so frequent or severe that it creates a hostile or offensive work environment; a reasonable argument can be made that the level of actionable harassment that Fayetteville police officers are subjected to is both “frequent” and “severe” and can undoubtedly be classified as extreme. By comparison in relation to the levels of actionable harassment experienced by private sector citizens and even other city employees, the level of actionable harassment the officers have been subjected to and considered an acceptable “part of the job” is unconscionable.

Unethical or uncaring individuals in management or supervisory positions in an attempt to; (a) limit their need to respond and thus limit their own workload, or (b) abase themselves for personal gain and limit irritation to a preferred abusive client or citizenry, or (c) try to play the role of peacemaker inappropriately surrendering employees rights in the process have tried to argue that the level of discriminatory or sexual abuse is not that high, that much, that pervasive or that serious. The courts have said that this is not the standard by which the need to take action is measured. The standard is any act of discriminatory or sexual harassment is too much and that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. (19) Thankfully the courts have taken judicial notice that there are unethical or uncaring individuals in managerial or supervisory positions that have ulterior motives contradictory to the intents and goals of Title VII and have set forth clear and concise decisions that obstruct and prohibit these individuals’ personal agendas

Any municipality or police department who passively tolerates the creation of a hostile working environment implicitly ratifies the third party/non-employees’ misconduct and thereby encourages the third party/non-employee to persist in such misconduct, whatever the employer’s precise legal relationship to the perpetrator. Moreover, acquiescence on the part of the employer ⁽¹⁾ effectively communicates to the victim of harassment, the officer or city employee, that their employer does not care about the hostile environment in which they must work, a message that can only operate to exacerbate the adverse effects of that hostile environment. In this context, an employer who is not part of the solution inevitably becomes part of the problem. ⁽²⁷⁾

Does your organization list this “requirement” that it is expected your employees subject themselves to harassment and discrimination in your organization’s job description or does your organization have this “requirement” to allow your employees to be harassed and discriminated against listed in the organization’s rules and regulations, policies, procedures, or any other document as a condition of employment? It doesn’t? So, the organization is changing the terms and conditions of employment? Either way, your organization may have just made a very costly mistake. One would be illegal [violation of Title VII] and the other may make your employee very rich. In several recent cases, the courts have found that the employer’s unreasonable failure to address co-worker or third party harassment of the employee constituted an adverse action where the harassment caused the employee to suffer a materially adverse change in the terms and conditions of employment. ^{(28, 29)}

Employers in the 4th Circuit Court should be aware that the 4th Circuit Court has held that “Conduct short of ‘ultimate employment decisions’ can constitute adverse employment action.” ⁽³⁰⁾ The 7th Circuit Court has articulated that materially adverse employment actions actionable under Title VII are cases in which the employee is not moved to a different job or the skill requirements of their present job altered, but the conditions in which they works are changed in a way that subjects them to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in their workplace environment. ⁽³¹⁾ Common sense dictates that a municipality or police department failing in their responsibility to investigate and attempt to combat ⁽²⁰⁾ third-party sexual or discriminatory harassment of an officer or city employee of which it is aware would easily qualify as having made a materially adverse employment action against the officer or city employee.

Attempts have been tried in the past by various employers to argue some sort of “blanket” protection. In EEOC v. Fairbrook Medical Clinic, the U.S. Supreme Court declined to accept the argument that a medical setting, because it deals with human anatomy, is somehow liberated from professional norms. An argument that a law enforcement, criminal, or incarceration setting or any other setting that one may imagine would be rejected because the argument is essentially an effort to exempt these settings from the requirements of Title VII, notwithstanding the fact that Congress did not do so. ⁽³²⁾ It is obvious that there is not, nor will there ever be, or should there ever be, any kind of “blanket protection” afforded by the courts. ⁽³³⁾

Another argument that has been put forth by employers several times and failed is that harassment and abuse are “part of the job”. The courts have soundly rejected the defense that “it is inevitable in a job that requires constant contact with the public (particularly contact where people sometimes imbibe to excess, abuse narcotics, violate the law, engage in domestic strife or any number of other negative issues associated with public contact) that customers, violators, prisoners will sometimes make inappropriate comments, sexual or otherwise.” ⁽³⁴⁾ It is not the source of the harassment or discrimination that matters; it is how the municipality or police department deals with it that matters.

A municipality or police department may argue that they have no duty to act because violators and arrestees are typically so unruly and antagonistic that they should be treated separately from the rest of society and thus the officer’s exposure to discrimination or harassment be treated differently. This argument has already been answered by the courts. In Beckford, liability is imposed on the employer for the conduct of non-employees who were imprisoned in a correctional facility, even though those inmates were deemed so unruly that separation from other inmates was required. ⁽³⁵⁾ Once again, the courts reinforce that the source of the discrimination or harassment is not relevant, what the employer does about it is what is relevant. ⁽¹⁷⁾

Municipalities and police departments may argue that they are not prisons and are not dealing with prison inmates. Common sense interposes here and tells one that these are the same individuals that police officers deal with daily. In fact, an inmate did not normally enter a prison system unless a police officer interacted with them as a violator in the first place. If the courts intend for prison management to take action regarding these individuals then it is logical that the courts intend for law enforcement management to take action regarding these individuals too. Once again, the source of the discrimination or harassment is not relevant, what the employer does about it is what is relevant. ^{(17, 35)}

Nothing in the law suggests that municipal or law enforcement officials may ignore hostile conduct and refrain from taking corrective actions that would safeguard the rights of the victims, whether they are officers, civilian employees, violators, or prisoners. As the courts have found, “even in an inherently dangerous working environment, the focus remains on whether the employer took reasonable measures to make the workplace as safe as possible.” The [police department] is not, by simple virtue of its status as a law enforcement institution, immune under Title VII from a legal obligation to take such measures and to protect its employees to the extent possible from sexual and discriminatory harassment and abuse. ⁽³⁷⁾

Harassment | discrimination must be just as vigorously investigated and acted upon regardless of whether the third party | non-employee feels they have a complaint on the officer or not. A complaint by the third party | non-employee harasser does not “trump” or mitigate in any way a third party’s/non-employee’s actions of discrimination or harassment. A municipality or police department choosing to act in this manner would be ill-advised as it could be clearly a very costly mistake.

Take for example a scenario where a black male’s first words to a white police officer on a traffic stop are “What are you stopping me for you white cracker mother fucker!” and the officer snaps back “Stow that shit, I’m not in the mood. Let me see your driver’s license and registration …”

Most departments have a policy regarding cursing. A municipality or police department would be very ill-advised to ignore the discrimination [a very vile and humiliating, degrading invective] and seek only to discipline the officer who only in self-defense, wanting the discrimination to stop, uttered a mild curse word descriptive of the discriminative abusive harasser’s invective.

Now let’s say the officer stopped a civilian city employee and the city employee uttered the same invective. The situation would be handled very differently. On complaint, action would be taken against the civilian city employee as well as the officer.

“Employees are not pawns whose conduct uniquely subjects an employer to liability for their harassment of another employee while the employer is absolved of any liability for the conduct of third-party harassers: ⁽¹⁴) “Employees are not puppets on strings; employers have an arsenal of incentives and sanctions that can be applied to affect conduct. It is the use [of] (or failure to use) these options that make an employer responsible—and in this respect [third parties] are no different from employees.”

Let’s make this a little easier to read; “Police officers are not pawns whose conduct uniquely subjects a police department to liability for their harassment of another city employee while the police department is absolved of any liability for the conduct of third-party/non-employee harassers: ⁽¹⁴⁾ “Police officers are not puppets on strings; police departments have an arsenal of incentives and sanctions that can be applied to affect conduct. It is the use [of] (or failure to use) these options that make a police department responsible—and in this respect [third parties/non-employees] are no different from police officers.”

This coupled with the courts having said, “even if this means threatening a customer relationship. ⁽¹²⁾ clearly indicates that the court’s intent is to mandate municipalities and police departments to enforce discrimination/harassment laws and orders fairly and impartially whether the violator is an employee or third party/non-employee.

Although it is understood that those who labor in the field of law enforcement are expected to have reasonably thick skins, the “accumulated effect” of repeated verbal attacks and physical intimidation towards the officer by violators may reasonably be found to constitute harassment within the meaning of Title VII. ⁽³⁸⁾ This oft-touted “thick skin” is generally proudly espoused by those in managerial positions normally several steps removed from the abuse. Having “thick skin” may be appropriate in a setting such as at a Ku Klux Klan or Black Panthers rally where either entity may be shouting ethnic generalities at no one in particular and may have a freedom of speech argument. But this “thick skin” premise fails thoroughly when the discriminatory abuse or sexual harassment is “personalized” as opposed to “generalized”.

The courts have clearly stated that there is a difference between general crudities and “generalized” statements that pollute the work environment as opposed to highly personalized comments designed or intended to single out officers to demean, humiliate or ridicule the officer in the eyes of the public. Common experience teaches that the latter has a greater impact on their listeners and thus are more severe forms of harassment. ^{(39, 40)}

In a recent 4th Circuit Court decision even the stalking, calling of names, or questioning of an officer’s sexual orientation by a third party | non-employee harasser could cause liability for the officer’s employer under Title VII of the 1964 Civil Rights Act. (41) This decision further advances the concept of “personalized” acts designed to demean, humiliate or ridicule the recipient, as viewed by the recipient [officer/city employee], that is actionable under Title VII. ⁽⁴³⁾

Actionable harassment or discrimination is harassment or discrimination that is illegal if it is so frequent or severe that it creates a hostile or offensive work environment or if it results in an adverse employment decision (such as the victim being fired or demoted or other punitive action).

In legal parlance, this means that the harassment or discrimination need not be both frequent and severe. It can be one or the other. Severe by itself can be sufficient to trigger a harassment claim. A single, severe incident of harassment may be sufficient to constitute a Title VII violation; the more severe the harassment, the less need to show a repetitive series of incidents. ⁽⁴²⁾ The harassment or discrimination need not result in both a hostile work environment and an adverse employment decision. The result of either one may be sufficient to be actionable under Title VII.

It is a myth that a police department or municipality cannot be liable for workplace harassment in the absence of proof of tangible job consequences. It is not necessary for an officer to demonstrate that conduct resulted in the loss of pay, benefits, or status. Simply working in a hostile environment is sufficient.

Municipalities and police departments frequently fail to apply the proper perspective in their inquiry into issues of harassment or discrimination. The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s [the officer’s] position, considering all the circumstances. (⁴³⁾ The opinion in Harris v. Forklift Systems made clear that to establish liability, a plaintiff in a Title VII hostile environment sexual harassment case need not show psychological injury or adverse impact on job performance. The inquiry in such cases must focus on whether a reasonable person would perceive the work environment to be hostile or abusive, and whether the plaintiff himself or herself experienced the conduct as harassment. ⁽⁴⁴⁾ This inquiry also requires careful consideration of the social context in which particular behavior occurs and is experienced by its target, the officer.

Conduct that is considered normal and appropriate in one setting may be deemed abusive or hostile in another while some conduct is never normal or appropriate. ⁽⁴⁵⁾ That the harassment or discrimination that occurs in the public forum in the streets only exacerbates the probability of an actionable complaint under Title VII, not mitigate it.

An argument that has been advanced several times by employers only to be subjected to utter failure and rejection by the courts is that if the harassment or discrimination does not affect the employee’s performance, or depress the employee, or cause a nervous breakdown, or in some other way cause a debilitating effect to the employee, that the severity aspect of the equation is not met. Title VII comes into play before the harassing conduct leads to a nervous breakdown. ⁽⁴⁶⁾ The fact that an officer would continue to work under difficult conditions is to that officer’s credit, not the harasser’s. It is certainly not an argument that an employer may hide behind in an effort to shirk their responsibility to investigate and attempt to combat ⁽²⁰⁾ harassment and discrimination.

Moreover, the fact that an officer continued to provide quality police services to citizens in spite of a violator’s or citizen’s conduct is not dispositive either. The critical inquiry “‘is not whether work has been impaired, but whether working conditions have been discriminatively altered.’ ⁽⁴⁷⁾

Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, keeping in mind this is as determined by the victim based on a “reasonable person” standard and not on management’s viewpoint ^{(43, 44)}, even a single incident of harassment or discrimination may be actionable under Title VII. ⁽⁴⁸⁾ This is particularly true when the harassment is physical though it would be a mistake to think that a physical aspect would be required. It is not.

If a third party/non-employee in a public place during an arrest (or in any other interaction with an officer) speaks out some invective approximate to “White cracker motherfucker!” or “Get your hands off me nigger!” or “Get away from me you yellow chink bastard!” and strikes the officer, the third-party | non-employee would clearly meet the criteria of “severe” and “creating a hostile work environment” that would be actionable under Title VII. Such harassment or discrimination may be severe enough that a Title VII action may be allowed even without an act of physical aggression. ⁽⁴⁹⁾

While persistent, pervasive behavior is generally required before a work environment is considered hostile,

1. a single severe physical act,
2. threatening behavior,
3. or extremely offensive words may suffice. ⁽⁵⁰⁾

One court determined that verbal abuse could be found by a jury to heighten tensions, to adversely affect the performance of professionals, and to communicate a dismissive attitude toward the victim that hardly seems consonant with the highest standards of professional treatment. ⁽³²⁾ When an officer interacts with a violator [or anyone] it is initiated by the officer as a respectful, courteous, and civil meeting. Though the content of that meeting may be disciplinary in nature, society as a whole expects the meeting to be conducted in a respectful and courteous manner by all parties sans discrimination or sexual harassment. There can be no doubt that this is one of the primary goals of Title VII. Additionally, the courts have said that a racial slur was not protected speech under the First Amendment. ⁽⁵¹⁾

Officers are subject to such actionable abuse ⁽⁵²⁾ which includes, but is not limited to:

1. Sexual jokes, stories, sexually explicit profanity, threats, sexual comments, being whistled at in a sexually suggestive manner, and having certain sexual attributes about one’s physical appearance described. The use of terms of endearment such as “ honey”, “ babe”, “ sweetheart”, “ dear”, “ stud” or “ hunk”.
2. Unwelcome racial comments, jokes, or derogatory descriptions of an employee (or others with whom the employee associates).
3. Use of offensive racial slurs such as (but not limited to):
   1. “Nigger,” “coon,” “spade,” “spook,” or “slave” to refer to black officers;
   2. “Spic” or “wetback” to refer to Hispanic officers;
   3. “Cracker,” “honkey,” “white girl,” or “white boy” to refer to white officers;
   4. “Chink,” or “slant-eyes” to refer to Asian officers;
   5. “Half-breed” to refer to officers of mixed racial ancestry;
4. Unwelcome references to an adult officer as a “boy” or “girl;”
5. Derogatory comments about a person’s racial ancestry or the racial ancestry of the officer’s family members, of other members of the officer’s racial group, or of those with whom the officer chooses to associate;
6. Race-specific, derogatory comments about an officer’s skin color, hair texture, facial features, or other physical characteristics;
7. Stating that an officer must perform certain assignments because of that person’s race or racial characteristics;
8. Stating that an officer may not perform certain assignments, sit/eat/drink at certain places, because he or she belongs to a particular racial group;
9. Obscene, lewd, or sexually explicit comments, jokes, or suggestions concerning or focusing on the sexuality or supposed sexual characteristics of a particular racial group;
10. Racially derogatory descriptions or comments regarding other members of an officer’s racial group in the presence of that officer.
11. Derogatory or adverse treatment that is not explicitly racial in nature when it is motivated by racial animus, any of which creates or tends to create a hostile environment based on race for an officer or employees of the City.
12. Violators/Complainants prejudiced requests for white, black, male, or female officers to provide them service.
13. Sexual harassment by being stared at (i.e.“ undressing the officer with one’s eyes”), blowing kisses, suggestive looks, winking, gestures, whistles, or licking one’s lips in a suggestive manner.
14. Violators touching their selves sexually or talking about their sexual activity or prowess in front of officers or massaging themselves sexually in a manner indicating that the officer should give them a “Blow Job”
15. Requests by violators for sexual favors from officers such as “Blow Me!”.
16. Physical sexual harassment by touching, patting, pinching, bumping, grabbing, cornering, or blocking a passageway.
17. Criticizing and mocking officers with publicly loud and unprovoked outbursts that the officer is racist when no basis in fact exists for such accusations.
18. Challenging every decision the officer makes with statements like, “I know why you’re doing this you white racist mother fucker. You’re doing this because I’m black!” over and over and over again every time the officer says anything to the offender in the encounter.
19. Making unsolicited statements of threats towards/about the officer’s children.
20. “Gunning,” – The notorious practice of openly masturbating toward law enforcement.
21. Calling officers names—including cunt, whore, slut, and bitch—
22. Describing in graphic detail, the sexual liberties that the violator would take with the officer if given the opportunity. Statements like, “I’ll fuck you up the ass bitch! Take that badge and gun off and see if I don’t!”
23. Any of the conduct listed above, when communicated to a person indirectly, through another person, or in writing.
24. Displaying racially derogatory pictures, cartoons, caricatures, or slogans to an officer;
25. Displaying or distributing pamphlets or other printed materials to an officer if those materials declare the supremacy or superiority of a particular racial group or specify that any race is inferior to any other; crosses the line from “generalized” to highly “personalized”.
26. Drawing or writing racial slurs or graffiti of a racial nature to an officer;
27. Refusing to work with or assist an officer because of that officer’s race or the race of a person with whom the officer associates;
28. Sabotaging or interfering with an officer’s work because of that officer’s race or the race of a person with whom the officer’s associates;
29. Hiding, destroying, or otherwise tampering with an officer’s work equipment because of that officer’s race or the race of a person with whom the officer’s associates;
30. Making false reports about an officer’s work performance because of that officer’s race or the race of a person with whom the officer’s associates;
31. Stranding or abandoning fellow officer’s on the job because of that officer’s race or the race of a person with whom the officer’s associates.

As Faragher made clear, the creation of an effective policy is not enough, and the failure to communicate the policy to employees, including supervisors, will prevent all but very small employers from successfully defending a claim of harassment. Accordingly, employers should ensure that their policy is communicated to employees, particularly supervisors. To enhance the effectiveness of the policy, employers should conduct training sessions, especially for supervisors, on the types of comments and conduct that might be deemed to constitute unlawful harassment. In this connection, employers also should educate supervisors on the employer’s procedures for responding to claims of harassment, as well as anti-retaliation protections in the policy.

An employer’s harassment complaint procedure should be designed to encourage victims to come forward. To that end, it should clearly explain the process and ensure that there are no unreasonable obstacles to complaints. A complaint procedure should not be rigid, since that could defeat the goal of preventing and correcting harassment. When an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation regardless of whether it conforms to a particular format or is made in writing.

EEOC v. Cromer Food Servs. Inc illustrates to employers within the Fourth Circuit (which includes Virginia, Maryland, North Carolina, West Virginia, and South Carolina) that a written policy for reporting harassment may not provide insulation from liability under Title VII. North Carolina employers must ensure that they have a reasonable process in place to address allegations of harassment oits employees by third parties.

Additionally, just as acts of physical aggression, intimidation, hostility, or unequal treatment based on sex may be combined with incidents of sexual harassment to establish the existence of discriminatory terms and conditions of employment so may they also be combined with any other form of harassment or discrimination to establish the existence of discriminatory terms and conditions of employment. ⁽⁵³⁾ Thus, employers should establish anti-harassment policies and complaint procedures covering all forms of unlawful harassment including third-party/non-employee harassment.

Neither can a municipality or police department retaliate against an officer or city employee for making an allegation, testifying, assisting, or otherwise participating in any investigation, proceeding, or hearing on the discriminatory practices of the employer. ⁽⁵⁴⁾ Impermissible remedial measures or actions levied against officer or city employee is; “A remedial measure that makes the victim of harassment or discrimination worse off is ineffective per se,” ⁽⁵⁵⁾ U.S. Supreme Court also has defined “adverse action” as any action that might dissuade a reasonable employee from making or supporting a bias charge. ⁽⁵⁶⁾

Other examples of conduct that may constitute retaliation based on a complaint of racial or sexual harassment or other forms of employment discrimination; ⁽⁵⁷⁾

Ignoring, shunning, isolating, or refusing to work with or assist another employee because that employee has complained about racial or sexual harassment, whether or not the complaint resulted in an investigation or discipline of the accused harasser;

Giving an employee inferior or less desirable working assignments or conditions because that employee has complained about racial or sexual harassment, whether or not the complaint resulted in an investigation or discipline of the accused harasser;

Name-calling, derogatory statements, or threatening physical gestures or conduct towards another employee because that employee has complained about racial or sexual harassment, whether or not the complaint resulted in an investigation or discipline of the accused harasser;

Communication of threats either directly to an employee, or to an employee through a third party or in writing, because that employee has complained about racial or sexual harassment, whether or not the complaint resulted in an investigation or discipline of the accused harasser.

PUNITIVE AWARDS

In addition to the relief available as a protected class employees ^{(See Appendix II)} may also utilize the public policy exception to the employment-at-will doctrine. Adopted in some form by a strong majority of the states, the public policy exception to the employment-at-will doctrine provides that an employer may not terminate an employee for a reason which is against public policy. Under North Carolina law, an employer who wrongfully discharges an employee in violation of public policy is liable in tort for back wages, compensatory damages (additional financial loss, pain and suffering, mental distress), and possibly punitive damages as well. A claim with a tort remedy is especially attractive to claimants since, unlike certain statutory claims, wrongful discharge claims are not subject to “caps” (limits on the amount of a recovery set by statute).

Ignore complaints about any kind of harassment, and you may soon find that the employee you ignored hitting your organization with more than just claims under federal Title VII. They may also sue for common-law claims like assault and battery and intentional infliction of emotional distress. Juries can award unlimited damages for common-law violations. Plus, punitive damages can hit the stratosphere.

In Hobson v. Tishman Properties, the federal trial court considering Hobson’s case said those claims could go to a jury, concluding that the behavior described went beyond sexual harassment. The judge said a jury could very well conclude that the behavior was outrageous and the company’s response added to her distress. ⁽⁵⁸⁾

Failure to investigate and “combat” the “third party” | non-employee harasser can be a very costly error on the part of a municipality or police department. In one case a court upheld an award against an employer of compensatory and punitive damages totaling more than $200,000 to each of two plaintiffs due in large part to the employer’s inaction in the face of the plaintiff’s earlier complaints of harassment, and failure to implement any harassment or grievance policy for the protection of its employees. ⁽⁵⁹⁾ In another case, a federal jury in Florida awarded $630,000 to 14 employees who alleged that the employer created a hostile work environment by failing to prevent harassing “third party”/non-employee behavior. ⁽⁶⁰⁾

In Kolstad v American Dental Association, 119 S Ct 2118, a case involving sexual harassment, the $50,000 compensatory award represented less than 1 percent of the $7 million in punitive damages that were awarded. A lawsuit against Ralph’s supermarket chain in California produced an award, to six women who alleged sexual harassment, of $5 million each, for a total of $30 million, in addition to an earlier judgment of $550,000 for emotional damages.

As we can see punitive awards can get quite costly. We are not talking merely hundreds of dollars being at risk. The risk is ranging from hundreds of thousands to millions of dollars.

WAYS TO COMBAT

If the police management expects optimum performance from their officers then it is expected and required of police command staff and supervisors to provide the optimum work environment they are capable of achieving. Note that I did not say “provide the optimum work environment”, I said, “provide the optimum work environment they are capable of achieving”. It is important to note that a simple token gesture is not accepted by the courts, only a vigorous and appropriate response inclusive of valid and sincere attempts at all possible remedies is considered sufficient.

There are many acceptable ways for a municipality or police department to combat harassment or discrimination on behalf of their city employee or officer as required.

Examples of measures to stop the harassment and ensure that it does not recur: ⁽⁶¹⁾

1. Make it clear on all the municipal and police websites, on the annual report, on quarterly media releases that the City of Fayetteville and the Fayetteville Police Department will not tolerate harassment or discrimination of any kind towards any of its employees and will actively and aggressively pursue federal, state and local civil and criminal relief on its employee’s behalf if it occurs.
2. Refuse to accommodate any act of discrimination | harassment such as the request for another officer on a discriminatory | harassment basis.
3. Include indemnity provisions in or on all legal documents to shift the liability for third-party sexual harassment or discrimination to the vendor, customer, or violator and enforce those provisions.
4. Make it clear that should an individual commit acts of harassment while working as an employee of any business, that they represent that business, and as such a complaint will be made to their place of employment regarding their actions, and that if the appropriate action is not taken that this business may lose its status as a viable business regarding future dealings with the City of Fayetteville in addition to being subject to federal, state and local civil and criminal actions.
5. Develop a clear and concise plan of progressive disciplinary actions to deal with the third party | non-employee harassing offender.
   1. Issue a written warning to the third party | non-employee harasser with a copy forwarded to the third party | non-employee harasser’s place of business to ensure that s/he understands that his or her conduct violated the municipality’s or police department’s anti-harassment policy and actively seek an apology to the officer/city employee by the harasser.
      1. This should not be a problem in that the inverse certainly isn’t [complaints made to the police officer’s place of business and encouragement to do so is advertised].
   2. Referral of the incidents for prosecution and actively and aggressively pursue federal, state, and local civil and criminal relief on its employee’s behalf if it occurs.
6. Establish procedures to monitor and investigate allegations of harassment, discrimination, and/or violence from third parties or to record facts and figures for monitoring and ensure follow-up of the policies put in place to support the initiation of civil and criminal relief on the employee’s behalf if the harassment/discrimination of harassment, discrimination and/or violence has not stopped.
7. Include the offended officer/city employee by ensuring that the offended officer/city employee receives copies of actions taken so that they are aware that the municipality or police department is acting in their best interest in addition to contributing positively to the employee’s mental and physical well being.
8. Utilize the appropriate charges and charge enhancements against violators;
   1. N.C.G.S. § 14-197 [Using profane or indecent language on public highways.] If any person shall, on any public road or highway and in the hearing of two or more persons, in a loud and boisterous manner, use indecent or profane language, he shall be guilty of a Class 3 misdemeanor. The following counties shall be exempt from the provisions of this section: Pitt and Swain. (1913, c. 40; C.S., s. 4352; Pub. Loc. Ex. Sess., 1924, c. 65; 1933, c. 309; 1937, c. 9; 1939, c. 73; 1945, c. 398; 1947, cc. 144, 959; 1949, c. 845; 1957, c. 348; 1959, c. 733; 1963, cc. 39, 123; 1969, c. 300; 1971, c. 718; 1973, cc. 120, 233; 1993, c. 539, s. 129; 1994, Ex. Sess., c. 24, s. 14(c).)
   2. N.C.G.S. § 14‑401.14 [Ethnic intimidation; teaching any technique to be used for ethnic intimidation.] (a) If a person shall, because of race, color, religion, nationality, or country of origin, assault another person, or damage or deface the property of another person, or threaten to do any such act, he shall be guilty of a Class 1 misdemeanor. (b) A person who assembles with one or more persons to teach any technique or means to be used to commit any act in violation of subsection (a) of this section is guilty of a Class 1 misdemeanor. (1991, c. 493, s. 1; 1993, c. 332, s. 1; c. 539, s. 283; 1994, Ex. Sess., c. 14, s. 14(b); c. 24, s. 14(c); 1995, c. 509, s. 10.)
   3. N.C.G.S. § 14‑3(c) [Punishment of misdemeanors, infamous offenses, offenses committed in secrecy and malice, or with deceit and intent to defraud, or with ethnic animosity.] (c) If any Class 2 or Class 3 misdemeanor is committed because of the victim’s race, color, religion, nationality, or country of origin, the offender shall be guilty of a Class 1 misdemeanor. If any Class A1 or Class 1 misdemeanor offense is committed because of the victim’s race, color, religion, nationality, or country of origin, the offender shall be guilty of a Class H felony. (R.C., c. 34, s. 120; Code, s. 1097; Rev., s. 3293; C.S., s. 4173; 1927, c. 1; 1967, c. 1251, s. 3; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, ss. 2, 47, 48; 1981, c. 63, s. 1; c. 179, s. 14; 1991, c. 702, s. 2; 1993, c. 538, s. 7; 1994, Ex. Sess., c. 14, s. 2; c. 24, s. 14(b); 1995 (Reg. Sess., 1996), c. 742, s. 6; 2008‑197, s. 4.1.)

Michigan’s “Ethnic Intimidation” statute currently provides that “A person is guilty of ethnic intimidation if that person maliciously, and with specific intent to intimidate or harass another person because of that person’s race, color, religion, gender, or national origin…” commits a crime against that person or that person’s property. ⁽²¹⁾ It is a two-year felony. ⁽²²⁾ The statute also provides that a victim may bring a civil suit against a perpetrator “regardless of the existence or outcome of any criminal prosecution.” A prevailing victim stands to recover the greater of $2,000 or three times actual damages, plus attorney fees and costs. ⁽²³⁾

Thus, Michigan’s present statute complies with the requirements of both Mitchell and R.A.V. Further, the decision in Apprendi will have no impact on the Michigan statute as it is currently written. However, if in Apprendi the Supreme Court holds that it is permissible to remove the question of motive from the jury’s purview, it can be anticipated that efforts to do so in Michigan would commence immediately.

As originally drafted and proposed, Michigan’s statute included “sexual orientation” as one of the proscribed motivations. This provision was, however, dropped in a legislative compromise to secure the passage of the remainder of the bill. ⁽²⁴⁾ Attempts to amend the statute in order to reinstate sexual orientation began almost immediately and are currently an annual event in the Michigan Legislature. More recently, attempts to amend the Act have sought to make the sentence consecutive to any other sentence arising from the same criminal conduct, as well as to change the title of the act to the more accurately descriptive “Felonious Intimidation” Act.2

The Answer: With this information in mind, the correct answer is: NO! Police officers and city employees do not have to accept abuse from customers, violators, or any other kind of third-party entity. City employees and police officers not only deserve the same respect it is expected that they give, but municipalities and police departments are also required to see that they get it.

One thing is a certainty in all cases; it is the employer’s responsibility, not the officer’s, to confront the harasser and to put an end to the conduct. ⁽⁶²⁾ Neither can the municipality or police department shirk their duty to take corrective measures to prevent a hostile work environment caused by third parties – even when this type of harassment or hostile work environment may be “inherently part of the job.” ⁽⁶³⁾

Ultimately, municipalities and police departments can best protect themselves by protecting and defending their employees.

APPENDIX I – Key Definitions:

Adverse Employment Action: A dismissal, removal, demotion, non-selection, suspension, furlough without pay, denial of training, denial of promotion, oral or written admonishments or a reduction in grade or pay.

Adverse Impact: Occurs when a decision, practice, or policy has a disproportionately negative effect on a protected group. Adverse Impact may be unintentional.

Disparate Treatment: Occurs when a person is treated differently from others. The different treatment is based on one or more of the protected factors and the different treatment is intentional.

Hostile Work Environment: One that both a reasonable person would find hostile or abusive and one that a particular person who is the object of the harassment perceives to be hostile or abusive. A hostile work environment is determined by looking at all of the circumstances, including the frequency of the allegedly harassing conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance.

Quid Pro Quo: Harassment consisting of unwelcome advances, requests for favors, other verbal or physical conduct when;

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such an individual.

Reasonable Person Standard: A standard used by some courts to help determine if a harassment case at issue was an illegal action. In short, it states: one criterion for determining if the harassment was illegal is that the conduct must be offensive to any “reasonable person.”

Reasonable Woman Standard: A standard used by some courts to help determine if in a sexual harassment case (where a woman [as defined by genetically possessing “XX” chromosomes] is a plaintiff) would have felt that the respondent’s actions constituted sexual harassment. In short, it states: one criterion for determining if the harassment was illegal is that the conduct must be offensive to any reasonable woman.

Retaliation/Reprisal: Adverse action(s) taken because of opposition to unlawful workplace harassment. Retaliatory acts can be aimed at the complainant/grievant or any employee involved in the complaint in any way.

Sexual Harassment: Sexual harassment is any unwelcome sexual advances; requests for sexual favors; or any other physical or verbal conduct of a sexual nature when:
submission to the conduct is made either a term or condition of employment or submission or rejection of such conduct is used as a basis for employment decision(s);
such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.
*Sexual Harassment is Unlawful Workplace Harassment*

The term, Condition, or Privilege of Employment: The circumstances (implicit or explicit) under which an employment relationship is established and carried out. It encompasses all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.

Unlawful Workplace Harassment: Unwelcome or unsolicited speech or conduct based upon race, sex, creed, religion, national origin, age, color, or handicapping condition as defined by N.C.G.S. § 168-A-3 that creates a hostile work environment or circumstances involving quid pro quo. *Unlawful Workplace Harassment is a form of discrimination*

Workplace: The workplace includes but is not limited to the physical worksite, restrooms, cafeterias, training sessions, business travel, conferences, work-related social gatherings, etc. This would also encompass locations of calls for police service, traffic stops, at work-related facilities such as hospitals, jails, courts, etc. “Workplace” for law enforcement officers is any place that officers are legally entitled/required to be in the performance of their duties.

APPENDIX II – Protected Classes/Factors in North Carolina: (64)

A group of people who share common characteristics and are protected from employment harassment/discrimination by Equal Employment Opportunity laws. Protected classes identified by state and/or federal law include:

• Age – A person 40 years of age or older.
• Color – Regarding the complexion of a person’s skin.
• Creed – Any statement or system of belief, principles, or opinions.
• Disability – Any person who has a physical or mental impairment which substantially limits one or more major life activities; one who has a record of such impairment; or one who is regarded as having such an impairment.
• National Origin – Characteristic of or peculiar to the people of a nation; of or relating to ancestral beginnings.
• Race – A local geographic or global human population distinguished as a more or less distinct group by genetically transmitted physical characteristics; any group of people united or classified together on the basis of common history, nationality, or geographical distribution; mankind as a whole. All people are allowed for the purposes of Title VII of the 1964 Civil Rights Act to claim genealogy to one or more races and are, therefore, readily covered under this category.
• Religion – The expression of one’s belief in and/or reverence for a superhuman power recognized as the creator and/or governor of the universe; or lack thereof.
• Sex/Gender – The condition or character of being male or female. Sexual preference is not protected under this or any other protected class identified by Title VII of the 1964 Civil Rights Act. All people possess this attribute and are, therefore, readily covered under this category.

APPENDIX III – EEO Laws (64)

• Title VII of the Civil Rights Act of 1964 as amended by the Equal Employment Opportunity Act (1972), The Pregnancy Discrimination Act (1978), and the Civil Rights Act of 1991
  • Covered: Employers with 15 or more employees in Federal, State, and Local governments and private employment
  • Requirements: Neither the employer nor its representatives; i.e. managers, supervisors, etc., shall discriminate in selection, promotion, compensation, fringe benefits, training, or other conditions of employment based on race, sex (including pregnancy), color, religion, or national origin
• Executive Order 11246
  • Covered: Employees holding contracts or subcontracts of $50,000 or more. Some branches of State and Local government
  • Requirements: Neither the employer or its representatives; i.e. managers, supervisors, etc. shall discriminate in selection, promotion, compensation, fringe benefits, training, or other conditions of employment based on race, sex (including pregnancy), color, religion, national origin. Harassment (sexual, etc.) is a kind of prohibited discrimination. A written affirmative action plan for minorities and women is required of employers with federal contracts of $50,000 or more.
• Equal Pay Act of 1963
  • Covered: Most employers, including federal, state and local governments
  • Requirements: Discrimination on the basis of sex in the provision of salary or fringe benefits is illegal where work is equal or in work that requires equal skill, effort and responsibility and is performed under the same working conditions.
• Age Discrimination in Employment Act of 1967 as amended May 1, 1974
  • Covered: Any employer with 20 or more employees who work 20 or more calendar weeks in a year. Covers federal, state and local governments
  • Requirements: Neither employer nor employer’s representatives may “fail, refuse to hire or discharge any individual or otherwise discriminate with respect to his compensation, terms, conditions or privileges of employment because of such individual’s age.” (Covers individuals 40 years of age and older.)
• Rehabilitation Act of 1973
  • Covered: Employees with federal contracts or subcontracts. Sections 501, 503 & 504 cover federal government
  • Requirements: Government contractors and subcontractors must take affirmative action to employ and advance in employment qualified persons with disabilities. Neither government contractors, subcontractors, nor their representatives may discriminate against such persons because of their physical or mental disability in any employment practice (hiring, training, compensation, upgrading, etc.).
• Vietnam Era Veterans Readjustment Assistance Act
  • Covered: Employees with federal contracts or subcontracts of $10,000 or more
  • Requirements: Government contractors and subcontractors must take affirmative action to employ and advance in employment, qualified special disabled veterans of the Vietnam era.
• Immigration Reform and Control Act of 1986, Section 102
  • Covered: Private employers with four or more employees
  • Requirements: Discrimination in employment (hiring, recruitment, referral for a fee, or discharging) on the basis of a person’s national origin or citizenship status is unlawful against any person (other than illegal aliens).
• Civil Rights Restoration Act of 1988
  • Covered: Departments and agencies of state and local governments when any part of them receive federal funds; entire colleges, universities and public school systems, if any program or activity receives federal funds; federal fund recipients which are corporations and private organizations that provide education, health care, housing, social services, parks or recreation
  • Requirements: Discrimination on the basis of race, sex, age or persons with disabilities is unlawful for all entities (or portions of that entity) that receives federal funds.
• The Americans with Disabilities Act of 1990
  • Covered: Public and private employers with 15 or more employees
  • Requirements: Equal employment opportunity must be provided to qualified individuals with disabilities in all employment related activities. It expands the legal responsibilities of the Rehabilitation Act of 1973. Employers are required to provide reasonable accommodations for a disability when needed in order for a qualified employee to perform the essential functions of the job in question or to participate in any other employment related activity. Employers must also provide a reasonable accommodation for an applicant when the accommodation is needed in order for the applicant to have equal employment opportunity in the application process. Discrimination on the basis of disability against any qualified individual in any employment related activity is prohibited.
• Civil Rights Act of 1991
  • Covered: Public and private employers with 15 or more employees
  • Requirements: It amends Title VII of the 1964 Civil Rights Act, places a heavier burden on employers attempting to defend themselves against discrimination charges. The act allows compensatory and punitive damage awards in cases of intentional discrimination, including cases brought under the Americans with Disabilities Act. Employers defending a Title VII disparate treatment impact challenge to an employment practice, including employment tests, however, must show that the practice is job-related for the particular position in question and consistent with a business necessity. Lawful affirmative action measures are not subjected to challenges alleging discrimination against classes other than those the measures are designed to benefit. It also allows for jury trials and punitive and compensatory damages.
• North Carolina General Statute § 126-16
  • Covered: Applicants for state employment
  • Requirements: State departments, agencies, universities, local political subdivisions may not discriminate based on race, sex, age (40+), color, national origin, religion, or disability as defined in G.S. 168A-3, except where specific age, sex, or physical requirements constitute a bona fide occupational qualification.
• North Carolina General Statute § 126-17
  • Covered: State and local government employees subject to the State Personnel Act
  • Requirements: State departments, agencies, universities, political subdivisions or their employees may not retaliate against employees protesting alleged violations of 126-16.
• North Carolina General Statute § 126-36-1
  • Covered: Applicants for state employment
  • Requirements: Persons who have reason to believe that employment was denied in violation of NCGS 126-16 have the right to appeal to the State Personnel Commission.
• North Carolina General Statute § 168A-5-11
  • Covered: Employees with 15 or more full-time workers within the state, excludes employers whose only employees are domestic or farm workers at that person’s home or farm
  • Requirements: Employers, employment agencies, apprenticeship program controllers are prohibited from discriminating against qualified persons with disabilities on the basis of the disabling condition and privileges of employment, and admission to, or employment programs established to provide apprenticeship or other training.
• North Carolina General Statute § 75B 1-7
  • Covered: Persons doing business in the state of North Carolina
  • Requirements: Persons doing business in the state may not enter into a contract that requires them to refuse to do business with a third person because of that person’s race, color, creed, religion, sex, national origin, or foreign trade relationship.
• North Carolina General Statute § 95-151
  • Covered: Employers and employees
  • Requirements: Employers and employees can not be discriminated against in employment/work procedure because of race, sex, national origin, religious or political affiliation.
• North Carolina General Statute § 127B-10-15
  • Covered: Employees/Applicants who are members of the Armed Forces
  • Requirements: Prohibits private persons and governmental agencies from discriminating against an individual because of such individual’s membership in the United States Armed Forces. Applies to employment and access to public places of entertainment, amusement, and accommodation.
• North Carolina General Statute § 130A-148(i)
  • Covered: Employees with the AIDS virus or HIV infection
  • Requirements: Employers may not deny continued employment to a person because he/she possesses the AIDS virus or HIV infection.
• North Carolina General Statute § 95-28.1
  • Prohibits discrimination against persons possessing sickle cell trait or hemoglobin C trait.
• North Carolina General Statute § 95-28.1A
  • Prohibits discrimination against persons based on genetic testing or genetic information.
• North Carolina General Statute § 95-28.2
  • Prohibits discrimination against persons for the lawful use of lawful products during non-working hours.
• North Carolina General Statute § 95-80
  • Prohibits membership in a labor organization as a condition of employment.
• North Carolina General Statute § 95-81
  • Prohibits non-membership in a labor organization as a condition of employment.
• North Carolina General Statute § 95-241
  • Prohibits retaliatory action against an employee for filing a complaint or assisting in the investigation of a complaint of harassment or discrimination.
• North Carolina General Statute § 143-422.2
  • Provides an equal opportunity for employment and compensation in state departments, institutions, and commissions.
• North Carolina General Statute § 168A-2
  • The Persons with Disabilities Protection Act prohibits discrimination on the basis of a disabling condition.

Appendix IV – Fayetteville Police Department Cases Involving Discriminatory / Sexual Harassment and Abuse 2007 – 2011

(1) “I can answer up to uhh, I can answer up to him. What’s expected of you is you act in a professional manner. You would go about business the way uhhh, you would conduct business as a professional and we all know in this business you gonna have to have thick skin and that’s the bottom line there. And we can sit here, and we can say, well gee, we want that same respect. Well guys and gals, you know, that’s not gonna happen all the time. But what’s expected is that you act accordingly, the way it’s expected of a Fayetteville police officer. No more, no less. Period.” – Department of Justice forum 05/18/2011.

(2) http://www.ci.fayetteville.nc.us/human_resources/ – Employee Relations

(3) These behaviors go well beyond “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher, 524 U.S. at 788 (quoting Barbara Lindemann & David D. Kadue, Sexual Harassment in Employment Law 1

(4) Verbal abuse is sufficiently significant in terms of its impact on the health and safety of workers and its economic impact’. “Guidelines for prevention of third party violence and harassment at work”: Frédéric Turlan, Héra Institute, EU1011031I, 15-11-2010

(5) Employee did not want to go to work, became depressed, started losing her hair, experienced panic attacks, and was eventually hospitalized. She needed psychiatric treatment, medication, and attributed the breakup of her marriage to her situation at work. – Rosario v. The Department of the Army

(6) “A work environment is shaped by the accumulation of abusive conduct, and the resulting harm cannot be measured by carving it ‘into a series of discrete incidents.’ ” Id. at 1222 (quoting Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992)).

(7) Harassing Conduct Need Not Be Sexual To Prove Hostile Environment Claim. “[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” Oncale, 523 U.S. at 80; see also O’Rourke, 235 F.3d at 729.

(8) The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. – http://www.eeoc.gov/laws/practices/index.cfm

(9) Uniformly, our sister circuits have applied the same rule that employers may be held liable under Title VII for harassment by third parties when that conduct creates a hostile work environment. See, e.g., EEOC v. Cromer Food Services, Inc. (4th Cir. 2011); Erickson v. Wis. Dep’t of Corr., 469 F.3d 600, 605 (7th Cir. 2006); Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001); Weston v. Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001); Slayton v. Ohio Dep’t of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073–74 (10th Cir. 1998); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 854 (1st Cir. 1998); Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir. 1997); see also Noah D. Zatz, Managing the Macaw: 14 Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent, 109 Colum. L. Rev. 1357, 1372–73 (2009).

(10) In Watson v. Blue Circle, Inc., we held that an “employer may be found liable for the harassing conduct of its customers if the employer fails to take immediate and appropriate corrective action in response to a hostile work environment of which the employer knew or reasonably should have known.” 324 F.3d 1252, 1258 n.2 (11th Cir. 2003). Uniformly, our sister circuits have applied the same rule that employers may be held liable under Title VII for harassment by third parties when that conduct creates a hostile work environment. See, e.g., EEOC v. Cromer Food Services, Inc. (4th Cir. 2011); Erickson v. Wis. Dep’t of Corr., 469 F.3d 600, 605 (7th Cir. 2006); Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001); Weston v. Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001); Slayton v. Ohio Dep’t of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073–74 (10th Cir. 1998); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 854 (1st Cir. 1998); Crist v. Focus Homes, Inc., 122 F.3d 1107, 1108 (8th Cir. 1997); see also Noah D. Zatz, Managing the Macaw: 14 Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent, 109 Colum. L. Rev. 1357, 1372–73 (2009).

(11) In Beckford v. Department of Corrections, The jury found in favor of the plaintiffs and awarded each of the 14 plaintiffs $45,000 in damages., The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said: It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer., Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.

(12) This decision makes clear that once an employer is placed on notice of harassment of its employees arising from any source, it is under a legal obligation to promptly stop the harassment, even if this means threatening a customer relationship. The solution implemented by the employer cannot place the employee in a disadvantageous situation as a result of the complaint. – EEOC v. Cromer Food Services, Inc.

(19) Powell v. Las Vegas Hilton Corp., 841 F. Supp. 104 (D. Nev. 1992), The court rejected the employer’s argument that it could not be held liable for the actions of independent third parties, stating that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.

(20) In an advisory issued by the EEOC inclusive in a recent 4th Circuit Court of Appeals the EEOC cited that; An employer can be held responsible for third-party harassment if the employer knew or should have known of the harassment and didn’t take the proper steps to address it, the 4th Circuit decided March 3 in EEOC v. Cromer Food Services, Inc. The EEOC filed a Title VII claim on Howard’s behalf. The district court granted summary judgment for CFS, but the 4th Circuit vacated the ruling, finding, as other circuits have, that an employer has a responsibility to investigate and attempt to combat third-party harassment of which it is aware.

(21) This requirement, according to the Court, is designed to encourage employees to report harassing conduct before it becomes severe or pervasive, thus serving Title VII’s deterrent purpose and refusing to reward employees for what their own efforts could have avoided. – Faragher and Ellerth

(22) In Faragher, the Court found a city government liable for harassment by a supervisor because such an employer, with many departments in multiple locations, could not protect against harassment without communicating “some formal [anti-harassment] policy with a sensible complaint procedure.” Id., at 809. Anti-harassment policies are necessary to show that agencies have taken “reasonable care to prevent and correct promptly . . . such harassment.” Id., at 807. As such, the Court stressed that Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Although the affirmative defense does not apply in cases of harassment by co-workers or non-employees, an agency cannot claim lack of knowledge as a defense to such harassment if it did not make clear to employees that they can bring such misconduct to the attention of management and that such complaints will be addressed. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Notice 915.002, V.C.1.a, n. 58 (June 18, 1999) (hereinafter referred to as Enforcement Guidance), citing Perry v. Ethan Allen, 115 F.3d 143, 149 (2d Cir. 1997) (“When harassment is perpetrated by the plaintiff’s co-workers, an employer will be liable if the plaintiff demonstrates that ‘the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it'”), cited in Faragher, 118 S. Ct. at 2289. Furthermore, an agency is liable for harassment by a co-worker or non-employees if management knew or should have known of the misconduct unless the agency can show that it took immediate and appropriate corrective action. 29 C.F.R. § 1604.11(d); see Archie v. U.S. Postal Service, EEOC Appeal No. 01A11588 (August 4, 2003). Therefore, agencies should have a mechanism, such as an anti-harassment policy, for investigating allegations of harassment by co-workers and undertaking corrective action, where appropriate.

(23) Although some harassment by violators cannot be reasonably avoided, the Department, on the other hand, cannot refuse to adopt reasonable measures to curtail harassment by violators. Beckford vs. Fla Dept of Corrections

(24) Employees can not be ignored by any or all levels of management, scoffed at, or told to quit being such a ‘crybaby’ – EEOC v. Cromer Food Services, Inc.

(25) An employer must take remedial action which is “reasonably calculated to end the harassment,” and which is also of a disciplinary nature. Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991)

(26) In Ocheltree, It is noted that the court held that harassment claims cannot be avoided “through the adoption of a ‘see no evil, hear no evil’ strategy.” Instead, knowledge can be imputed to an employer if a “reasonable [person], intent on complying with Title VII, would have known about the harassment,”

(27) “An employer who passively tolerates the creation of a hostile working environment implicitly ratifies the perpetrator’s misconduct and thereby encourages the perpetrator to persist in such misconduct, whatever the employer’s precise legal relationship to the perpetrator,” Justice Martha B. Sosman wrote. “Moreover, acquiescence on the part of the employer effectively communicates to the victim of harassment that her employer does not care about the hostile environment in which she must work, a message that can only operate to exacerbate the adverse effects of that hostile environment. In this context, an employer who is not part of the solution inevitably becomes part of the problem.” (Modern Cont’l/Obayashi v. Massachusetts Comm’n Against Discrim., Mass., No. SJC-09356, 9/7/05)

(28) See e.g. Richardson v. New York State Dept. of Corr. Service., 180 F.3d 426, 80 FEP Cases 110 (2d Cir. 1999)(finding employer’s unreasonable failure to stop co-worker harassment constituted an adverse action where the harassment caused the employee to suffer a materially adverse change in the terms and conditions of her employment); Strouss v. Michigan Dept. of Corr., 250 F.3d 336, 85 FEP Cases 1250 (6th Cir. 2001)(finding sufficient fact questions as to whether the plaintiff’s lateral transfer to another correctional facility constituted an adverse action where she was subjected to constant threats of violence by the inmates in the new facility).

(29) Expanding Rights under the “Retaliation” Provision of Title VII – Title VII of the Civil Rights Act of 1964 (the “Act”) prohibits an employer from retaliating against an employee who has “made a charge, testified, assisted or participated in” any charge of unlawful discrimination under the Act. To prove retaliation, a plaintiff has to show, among other elements, that he or she suffered an “adverse employment action.” Until recently, federal courts were split as to the definition of that term. Some courts held, for example, that it had to be an “ultimate employment decision” such as hiring, terminating, promoting or compensating, while others held that it was any “materially adverse change in the terms and conditions of employment,” such as suspension without pay or demotion. On June 22, 2006, the United States Supreme Court resolved this split, issuing a decision that expands the rights of employees under Title VII. In Burlington Northern Santa Fe Railroad Co. v. White, the Court held that an employer’s actions will be considered an adverse employment action if the conduct “would have been materially adverse to a reasonable employee or job applicant,” and the action could “dissuade a reasonable worker from making or supporting a charge of discrimination.” In addition, the Court expanded the scope of the definition of “adverse employment action” by stating that it “extends beyond workplace-related or employment-related retaliatory acts and harms.” This expansive definition, therefore, could include things that occur beyond everyday interactions in the office, such as vandalism, refusing to provide post-employment information (such as references), or continually calling or driving by an employee’s home for intimidation purposes. There are, however, two keys phrases in the Court’s new definition that will provide some support for employers. First, the phrase “materially adverse” means that the employee must show something more than a trivial harm. Second, the phrase “reasonable worker” is intended to make this an objective test, which is not dependent on the subjective reaction of the individual employee. 42 U.S.C. § 2000e-3(a). See, e.g., Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997). See, e.g., Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999) (noting that “[a] materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.”). 126 S. Ct. 2405 (2006). Smith, Gambrell & Russell, LLP

(30) In James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371 (4th Cir. 2004), the court held: An adverse employment action is a discriminatory act which “adversely affect[s] ‘the terms, conditions, or benefits of the plaintiff’s employment.” Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001) (quoting Munday v. Waste Mgmt. of North America, Inc., 126 F.3d 239, 243 (4th Cir. 1997)). “Conduct short of ‘ultimate employment decisions’ can constitute adverse employment action.” Id. at 865.

(31) In O’Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004), the court explained: This Court has articulated three general categories of materially adverse employment actions actionable under Title VII: (1) cases in which the employee’s compensation, fringe benefits, or other financial terms of employment are diminished, including termination; (2) cases in which a nominally lateral transfer with no change in financial terms significantly reduces the employee’s career prospects by preventing her from using her skills and experience, so that the skills are likely to atrophy and her career is likely to be stunted; and (3) cases in which the employee is not moved to a different job or the skill requirements of her present job altered, but the conditions in which she works are changed in a way that subjects her to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in her workplace environment. Herrnreiter v. Chi. Hous. Auth., 315 F.3d 742, 744-45 (7th Cir. 2002) (citations omitted).

(32) A jury could thus find that a reasonable person in Waechter’s position might tolerate run-of-the-mill jokes and even make some herself while still finding Kessel’s unique brand of invective to be hostile or abusive. Moreover, we decline to accept the argument that a medical setting, because it deals with human anatomy, is somehow liberated from professional norms. This argument is essentially an effort to exempt medical settings from the requirements of Title VII, notwithstanding the fact that Congress did not do so. To be sure, no one wishes every workplace to wear a grim face, and there must of course be room for humor to alleviate the tensions that inhere in the course of patient care. Here, however, Dr. Kessel’s remarks could be found by a jury to heighten tensions, to adversely affect the performance of female professionals, and to communicate a dismissive attitude to female physicians that hardly seems consonant with the highest standards of professional treatment. R&R Ventures, 244 F.3d at 340 (quoting Harris, 510 U.S. at 25 (Scalia, J., concurring)). EEOC v. FAIRBROOK MEDICAL CLINIC

(33) The Department instead sought a blanket exemption from an established requirement of Title VII. That strategy was misguided. Beckford v. Department of Corrections

(34) Furthermore, the court rejected the casino’s defense that “it is inevitable in a job that requires constant contact with the public (particularly one in a city that is a ‘fun’ destination where people sometimes imbibe to excess and often lose more money than they should) that customers will sometimes make inappropriate comments, sexual or otherwise.”41 – Powell v. Las Vegas Hilton Corp.

(35) Beckford v. Florida, illustrates that Florida employers must go one step further. The court made it very clear that employers must ensure all employees have a harassment-free workplace, regardless of who the harasser is. An all-male jury returned verdicts for 12 nurses, a physician, and a prison classification officer, all of whom were female, awarding them $45,000 each for the emotional stress and mental anguish they sustained due to harassment. (Beckford v. Florida, No. 2:06-CV-14324-JEM) The plaintiffs argued that the Florida Department of Corrections failed to exercise reasonable care to prevent the sexually harassing behavior committed by the inmates against the employees. The plaintiffs made numerous complaints to prison officials, but the complaints received no response—the officials refused to institute rules or disciplinary actions or use other means to stop the behavior. The award came more than a year after a jury in the Northern District of Florida awarded $990,000 to 12 state prison nurses in a similar case. (Rudolph v. Florida Dep’t of Corr., 28 EDR 178) Beckford imposes liability on the employer for the conduct of nonemployees who were imprisoned in a correctional facility, even though those inmates were deemed so unruly they required separation from other inmates.

(36) Judge Easterbrook explained that employees are not pawns whose conduct uniquely subjects an employer to liability for their harassment of another employee while the employer is absolved of any liability for the conduct of third-party harassers: “Employees are not puppets on strings; employers have an arsenal of incentives and sanctions (including discharge) that can be applied to affect conduct. It is the use [of] (or failure to use) these options that make an employer responsible—and in this respect [third parties] are no different from employees. ” Dunn v. Wash. County Hosp., 429 F.3d 689, 691 (7th Cir. 2005).

(37) In Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), the court held the correctional facility liable for not adequately responding to sexual harassment of female correctional officer by male inmates. As the court explained: Nothing in the law suggests that prison officials may ignore sexually hostile conduct and refrain from taking corrective actions that would safeguard the rights of the victims, whether they be guards or inmates. As the district court found, “even in an inherently dangerous working environment, the focus remains on whether the employer took reasonable measures to make the workplace as safe as possible.” The [prison] is not, by simple virtue of its status as a correctional institution, immune under Title VII from a legal obligation to take such measures and to protect its employees to the extent possible from inmate sexual abuse.

(38) Although “‘[t]he workplace is not a cocoon, and those who labor in it are expected to have reasonably thick skins, the “accumulated effect” of repeated verbal attacks and physical intimidation in the workplace may reasonably be found to constitute harassment within the meaning of Title VII. ” id. at 19 (quoting Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 54 (1st Cir. 2000))

(39) This case involves more than general crudity, however. Waechter’s allegations, if proven, show that Kessel targeted her with highly personalized comments designed to demean and humiliate her. In some cases, the remarks seemed intended to ridicule her in the eyes of patients and drug representatives.

(40) We have previously recognized that there is a difference between “generalized” statements that pollute the work environment and “personal gender-based remarks” that single out individuals for ridicule. Common experience teaches that the latter has a greater impact on their listeners and thus are more severe forms of harassment. See Conner v. Schrader- Bridgeport Int’l, Inc., 227 F.3d 179, 197 (4th Cir. 2000).

(41) An employer could be liable under Title VII of the 1964 Civil Rights Act for the harassment of a worker who allegedly was stalked, called names, and questioned about his sexual orientation by employees of its biggest client, the U.S. Court of Appeals for the Fourth Circuit ruled March 3, reversing a lower court. (EEOC v. Cromer Food Servs. Inc., 4th Cir., No. 10-1476, 3/3/11)

(42) But a single, unusually severe incident of harassment may be sufficient to constitute a Title VII violation; the more severe the harassment, the less need to show a repetitive series of incidents. – EEOC N-915-050

(43) The “objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’” Oncale, 523 U.S. at 81 (quoting Harris, 510 U.S. at 23). These circumstances include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23.

(44) The United States Supreme Court’s unanimous opinion in Harris v. Forklift Systems has been applauded by strange bedfellows: Title VII 2 plaintiffs and their lawyers, employers and their lawyers, feminists, and the American Civil Liberties Union. The opinion made clear that to establish liability, a plaintiff in a Title VII hostile environment sexual harassment case need not show psychological injury or adverse impact on job performance. The Court in Harris clarified that the inquiry in such cases must focus on whether a reasonable person would perceive the work environment to be hostile or abusive, and whether the plaintiff himself or herself experienced the conduct as harassment.

(45) This inquiry also “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale, 523 U.S. at 81. Conduct which is considered normal and appropriate in one setting may be deemed abusive or hostile in another.

(46) Title VII – Purpose Second, Fairbook argues that Kessel’s conduct was not sufficiently severe because it did not cause Waechter to miss work due to stress or otherwise adversely affect her job performance. These factors, while relevant, are not decisive here. “Title VII comes into play before the harassing conduct leads to a nervous breakdown.” Harris, 510 U.S. at 22. The fact that a plaintiff continued to work under difficult conditions is to her credit, not the harasser’s. Moreover, the fact that Waechter continued to provide quality care to her patients in spite of Kessel’s conduct is not dispositive either. R&R Ventures, 244 F.3d at 340 (quoting Harris, 510 U.S. at 25 (Scalia, J., concurring)). EEOC v. FAIRBROOK MEDICAL CLINIC

(47) The critical inquiry “‘is not whether work has been impaired, but whether working conditions have been discriminative altered.’” R&R Ventures, 244 F.3d at 340 (quoting Harris, 510 U.S. at 25 (Scalia, J., concurring)). EEOC v. FAIRBROOK MEDICAL CLINIC

(48) This is particularly true when the harassment is physical. Thus, in Barrett v. Omaha National Bank, 584 F. Supp, 22, 35 FEP Cases 585 (D. Neb. 1983), aff’d, 726 F.2d 424, 33 EPD ¶ 34,132 (8th Cir. 1984), one incident constituted actionable sexual harassment. The harasser talked to the plaintiff about sexual activities and touched her in an offensive manner.

(49) Third, Fairbrook contends that there is no evidence of any inappropriate touching, physical threats, sexual advances, or propositions that would tend to make Kessel’s conduct severe or pervasive. This is not entirely correct. While there is no indication that Kessel touched Waechter inappropriately or threatened her with force, there is evidence that he, at least implicitly, proposed that they engage in sexual activity.

(50) http://employment.lawyercentral.com/Myths-Harassment–10-12020-63.html

(51) Off-duty city firefighter utter racial slur against a city police officer. The incident resulted in suspension without pay. Employer followed proper procedure. Karins, an off-duty City of Atlantic City firefighter, was interviewed by a white police officer for suspicion of drunk driving. When the officer called to his black partner, Karins said “Oh no, don’t start that nigger shit!” Karins was not charged with any offenses, but the officers made a report of the incident. Karins was charged with violations of the Atlantic City Fire Department code of conduct and suspended for 48 working days without pay. The case eventually ended up in the Maryland high court. The suspension stands. The racial slur was not protected speech under the First Amendment. Karins had been suspended previously in another racial slur incident; the procedure followed was proper. Employers have the right to have work rules that limit the use of offensive language. Citation Karins v. City of Atlantic City, 1998 WL 63078 (Sup. Ct., N.J.) or 706 A 2d 706 (Sup. Ct., N. J., 1998)

(52) Verbal Expressions That May Constitute Racial Harassment or Discrimination, – UNITED STATES OF AMERICA, Plaintiff v., CITY OF BASTROP, LOUISIANA, Defendant., Civil Action No.CV01-0116 M and –Rosario v. The Department of the Army

(53) Acts of physical aggression, intimidation, hostility or unequal treatment based on sex may be combined with incidents of sexual harassment to establish the existence of discriminatory terms and conditions of employment. Hall v. Gus Construction Co., 842 F.2d 1014; Hicks v. Gates Rubber Co., 833 F. 2d at 1416.

(54) Neither can an employer retaliate against an employee for making an allegation, testifying, assisting, or otherwise participating in any investigation, proceeding or hearing on the discriminatory practices of the employer – Prohibited Employer Behavior Under Title VII, May 9, 2011, Collins & Collins, P.C.

(55) Impermissible remedial measures or actions levied against the employee are; “A remedial measure that makes the victim of sexual harassment worse off is ineffective per se,” – Guess v. Bethlehem Steel Corp., 913 F.2d 463, 53 FEP Cases 1547 (7th Cir. 1990)

(56) U.S. Supreme Court defined “adverse action” as any action that might dissuade a reasonable employee from making or supporting a bias charge. – Burlington N. & Santa Fe Ry. v. White 548 U.S. 53, 98 FEP Cases 385 (2006)

(57) United States of America, Plaintiff, v. City of Bastrop, Louisiana, Defendant. Civil Action No.CV01-0116 M

(58) Lauren Hobson worked for a property management firm. After she transferred to a new building, she claimed the supervisor there made her life miserable. Hobson said he constantly pulled her ponytail, asked whether she was wearing matching underwear and called her a “stupid little girl,” “weird” and “insecure.” She said he also made comments about her newlywed status, joked about her sex life and commented about her weight. Hobson claims that management told her she had three options: She could (1) resign, (2) accept a transfer or (3) continue her job with the harassing supervisor. Before she got a chance to pick, the company fired her. Hobson sued, but her attorney didn’t stick to just Title VII and IHRA harassment claims. He added Illinois common-law claims for intentional infliction of emotional distress and assault and battery. The federal trial court considering Hobson’s case said those claims could go to a jury, concluding that the behavior she described went beyond sexual harassment. The judge said a jury could very well conclude that the supervisor’s behavior was outrageous and the company’s response added to her distress. (Hobson v. Tishman Properties, No. 07-C-5744, ND IL, 2008)

(59) upholding an award of compensatory and punitive damages totaling more than $200,000 to each of two plaintiffs due in large part to the employer’s inaction in the face of the plaintiff’s earlier complaints of harassment, and failure to implement any sexual harassment or grievance policy for the protection of its employees); – Harris v. L&L Wings, Inc., 132 F.3d 978 (4th Cir. 1997)

(60) Beckford v. Department of Corrections

(61) http://www.eeoc.gov/policy/docs/harassment.html

(62) One thing is certain: it is the employer’s responsibility, not the employee’s, to confront the harasser and to put an end to the conduct. – “Coping with the “Toxic” Employee in a Changing Workforce”

(63) A California Court recently confirmed an employer’s duty to take corrective measures to prevent a hostile work environment caused by third parties – even when this type of harassment or hostile work environment may be “inherently part of the job.” – Turman v. Turning Point of Central California (2010) – Cal.App.4th-[2010 DJDAR 19101]

(64) North Carolina Office of State Personnel