Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Wednesday, November 2, 2016

Noose In Workplace Doesn't Equal Discrimination, Says Court

People look at me like I'm crazy when I tell them that there are multiple cases saying a noose at work does not equal actionable race discrimination. Well, here's another one. This case was shocking even to me because coworkers testified that there had been multiple instances of nooses hung in this workplace. Plus, the employee claimed other instances of being treated differently than non-black employees.

Yet, in this case the 7th Circuit found that the employer did enough by reporting the incident to the police and leaving the rest to them. Here's what the court said:
Employers are strictly liable for supervisor harassment, Williams, 361 F.3d at 1029, but when a plaintiff claims that co-workers are responsible for the harassment, “he must show that his employer has ‘been negligent either in discovering or remedying the harassment,’” id., quoting Mason v. Southern Illinois University, 233 F.3d 1036, 1043 (7th Cir. 2000). There is no evidence that a supervisor was involved in leaving the noose, so Cole must instead present evidence allowing a reasonable jury to find that the university was negligent—which means in this context that it failed to take “prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring,” Erie Foods, 576 F.3d at 636, quoting Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000). A prompt investigation is the first step toward a reasonable corrective action. See Erie Foods, 576 F.3d at 636, citing Lapka, 517 F.3d at 984.  
The undisputed facts here show that once Cole notified Richards of the discovery of the noose, she spoke to him about it (albeit insensitively, we must assume) and delivered her own notes on the incident to the university 16 No. 15-2305 police. She also reported the incident to Nicklas, then vice president of public safety and community relations, as well as Perez and Daurer. She did nothing more after that, but in these circumstances it was reasonable for the administration, having involved the university police, to leave the investigation to them.
The same would apply to a single instance of sexual grabbing, a single racial or other offensive slur, or other coworker harassment.

Bottom line is this: a single incident with a coworker, no matter how serious, is rarely going to equal a lawsuit against your employer. You have to report it under the company's harassment policy and give them a chance to correct the situation. They don't have to fire the person or take any specific action. They only have to assure it won't happen again. They don't have to tell you what action they took. And you can't just refuse to come back to work.

Not my rule. Don't blame me when I tell you that this is what the courts are saying. Talk to your legislators about changing the law. Better yet, vote well on Tuesday.


  1. Thank you Donna- I heard about your blog in the ABA Journal, and I decided to check it out, hoping I would find something to help my client, who was recently fired after a strange "noose" incident at a local factory. Wow! I never thought there might be such an eerily similar situation already heard by a court, much less the 7th Circuit Court of Appeals. I'm a general practitioner in Kentucky, so I'm not in the loop -- no pun intended- when it comes to trends/recent opinions in employment discrimination law.

    Thanks a million for the post! You can't imagine how much discovering that case has helped me.

    Happy Holidays! Thanks!

    Allison Mohon
    Attorney at Law

    1. I'm so glad you found it helpful! My mom's family is from Kentucky, by the way, mostly in the Whitley County area I think.


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.