Court defines ‘decisive action’ when employee charges bias

In a time when many judges seem to be extra-critical of how employers handle worker complaints, it’s nice to come across a company that did everything right in a discrimination case — and prevailed in court.

Arthur Ray Wilson worked as a laborer for an electrical utility contractor in Maine.

It’s pretty clear that Wilson was subjected to racial harassment from two co-workers. One called him “Aunt Jemima” — and when Wilson asked him to refrain from using that type of language, the co-worker said it was “how he talked to other n—–s.”

Later, when Wilson and the other two were digging in some hard dirt, one of the co-workers said it was “n—– work.” The head laborer on the job overheard the remark, said it was inappropriate and told the man to “watch his mouth.”

But the remarks didn’t stop. So Wilson called Ken Moulison, the owner of the company. The next day, Moulison visited the job site and confronted the two workers.

‘A foot out the door’

According to court documents, neither denied Wilson’s allegations. Moulison became irate and berated the men, making it clear that such misconduct was unacceptable under the company’s written anti-harassment policy.

He declared that each of them was working “with a foot out the door” and that any similar incidents — no matter how minor — would result in their being fired.

Moulison apologized to Wilson and assured him that any repetition of the harassment would result in the termination of the offenders. Moulison directed Wilson to report any further incidents directly to him.

Wilson agreed to do so.

Despite Moulison’s stern warning, Wilson’s co-workers continued to pepper him with racial epithets. He said other employees yelled at him, swore at him, and purposely assigned him tasks that were unnecessarily dangerous.

Despite Moulison’s admonition to report such incidents, Wilson never spoke to the company owner about what was going on.

Later, Wilson injured his back and went out on disability. He sued the company for racial discrimination, claiming that it should have taken more decisive action against the employees who harassed him.

Employer’s procedures upheld

The judge was sympathetic to Wilson: “Racial taunts and slurs have no proper niche in the workplace, and no one should have to endure a racially hostile work environment comparable to that described by (Wilson).”

But the court pointed out that “the imposition of employee discipline is not a rote exercise,” and employers have flexibility to decide what’s an appropriate punishment for a specific incident.

It was clear that Moulison’s response to Wilson’s complaint was “swift and appropriate,” said the judge. He immediately investigated the allegation, concluded that the harassment had indeed occurred and reprimanded the offenders in no uncertain terms.

He’d also stressed to Wilson that he should report any future harassment directly to him.

And that was the critical weakness in Wilson’s argument: Despite having ample opportunity to do so, the employee hadn’t contacted Moulison about subsequent events.

Although the court said it “appreciate(d) the sincerity of the plaintiff’s outrage,” it ruled that “an employer’s disciplinary decision … cannot be evaluated in hindsight.”

The court did point out three factors that might have changed its view of the company’s choice of disciplinary measures:

• If the employees were repeat offenders
• If the company had a history of discrimination problems, or
• If the company had a proven history of applying its discipline policies inconsistently.

The case is Wilson v. Moulison North Corp. For a look at the full decision, go here.