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The Supreme Court says employees should be encouraged to report harassing conduct before it becomes severe or pervasive. How, then, can a large company argue that it has the right to fire an employee for reporting a crude, racist remark by a co-worker? More to the point, how can it win? On May 12 the U.S. Court of Appeals for the 4th Circuit held, in a split decision, that IBM could lawfully fire Robert Jordan, an African-American, for complaining that a co-worker had called the snipers in the Washington, D.C., metropolitan area “two black monkeys” who should be put “in a cage with a bunch of black apes and let the apes fuck them.” Judge Paul Niemeyer wrote for the majority in Jordan v. Alternative Resources Corp. and IBM Corp. He was joined by Judge H. Emory Widener Jr., while Judge Robert King dissented. The panel majority said that an employee’s complaint is protected under Title VII of the 1964 Civil Rights Act only if the employee reasonably believes that the conduct violates the statute. The court held that Jordan could not reasonably believe that a hostile work environment then existed. More troubling, the court also held that he could not have reasonably thought that a hostile environment might emerge if IBM did not act. These holdings came despite the panel’s recognition that the co-worker’s remark was “unacceptably crude and racist,” that “Jordan reasonably concluded that the remark was inappropriate and should not have been made,” and that the co-worker “had a history of making inappropriate racial comments.” The panel decision undermines the Supreme Court’s repeated admonition to report harassing conduct before it becomes “severe or pervasive.” What employee in the 4th Circuit will now risk reporting harassment when it begins, before it becomes a fully entrenched problem? And because the level of protection from retaliation is higher if an employee is “participating” in Title VII’s processes by filing a complaint with the Equal Employment Opportunity Commission — in contrast to “opposing” discrimination internally — what lawyer will advise a client to do anything other than immediately contact the EEOC? These questions may be rhetorical, but they point to difficult problems. Swift reversal of the panel decision is needed, either by the 4th Circuit sitting en banc or by the Supreme Court. REPORTED RACISM Robert Jordan worked for Alternative Resources Corp., an IBM contractor, at an IBM site in Montgomery County, Md. He reported to both IBM and ARC managers. In October 2002, Jordan and a co-worker employed by IBM were in the break room watching a television news report on the arrest of the two sniper suspects who had terrorized the Washington area. The co-worker then made his racist remark. Jordan was offended. He mentioned the incident to several colleagues, two of whom told him that they had heard similar comments from the same employee on many occasions. Jordan reported the offensive comment to both his IBM and ARC managers and asked that the employee in question be told to stop making such remarks in the workplace. Soon thereafter, he was fired, though his job performance was never an issue. Jordan then sued IBM and ARC for firing him in retaliation for complaining about discriminatory conduct. IBM filed a motion to dismiss, arguing that Jordan’s complaint was not protected from retaliation, even though the company’s own internal policies prohibit “not only harassment but also inappropriate conduct,” “strongly urge” workers to report perceived breaches to management, and — most important for current purposes — assure employees that retaliation “will not be tolerated.” But IBM said these policies were not binding, so that only Title VII’s protections were at issue. And under Title VII, the company argued, Jordan could not have reasonably believed that the co-worker’s remark violated the law by creating a hostile work environment. The District Court agreed and, as we have seen, so has a panel of the 4th Circuit. TELL THE EMPLOYER The Supreme Court has emphasized that one goal of federal harassment law is to encourage employees to tell their employers of potential problems before those problems get out of hand. Specifically, in Burlington Industries v. Ellerth (1998) and Faragher v. Boca Raton (1998), the Supreme Court fashioned an affirmative defense, which employers in some circumstances can assert against claims of sexual (or racial) harassment. The defense requires proof that the company acted reasonably to prevent or correct any harassment and that the employee unreasonably failed to use the company’s preventive or remedial mechanisms. The Court sought to spur the creation of anti-harassment policies and complaint procedures, which would (in Ellerth‘s words) “encourage employees to report harassing conduct before it becomes severe or pervasive.” The hope was that potential violations would be addressed before they matured into legal claims. Ellerth and Faragher were not one-shot wonders. Six years later, in Pennsylvania State Police v. Suders (2004), the Court again said that employees should be encouraged to report harassing conduct “before it becomes severe or pervasive.” Ellerth, Faragher, and Suders are careful, thoughtful decisions. They say that the Supreme Court wants workers to report harassing conduct early, before it ripens into an actionable hostile environment, so that it can be nipped in the bud. The trouble with the 4th Circuit’s decision is that few employees will accept this early-reporting invitation if they know they can be fired for their efforts. Jordan acted just as the Supreme Court hoped in Ellerth, Faragher, and Suders. But the company said in its appellate brief that it had the right to fire Jordan because the Court’s directive to employers to encourage reporting of incipient violations is merely “dicta of the highest order.” For its part, the 4th Circuit panel did not say how its decision comported with the Supreme Court’s interest in fostering early reporting of harassment “before it becomes severe or pervasive.” The panel majority did not even quote this language. INFLAMMATORY RACISM Jordan reported crude racism. In past decisions the 4th Circuit has correctly held that calling African-Americans monkeys or apes is on a par with using the N word. And as King noted in his compelling dissent, the co-worker managed in the same breath to “impl[y] a savage, bestial sexual predilection acutely insulting to the African-American community.” The panel majority, however, found it unreasonable for Jordan to believe that the co-worker’s conduct, if unchecked, might develop into a hostile environment. Though this might be true “in the abstract,” the majority felt that the “only reasonable conclusion” was that the racist remark “was prompted by the unique and surely never-to-be-repeated capture of snipers in the area.” And although the co-worker “had a history of making inappropriate racial comments,” the majority said there were “no allegations that any complaints had been made about them to management.” Under the panel decision, though, complaints earlier than Jordan’s would certainly have been unprotected. And if his was the first complaint about the co-worker, it was also surely the last, in light of the message conveyed by his firing. Finally, the panel said it was unwilling to “establish a rule tantamount to a statutory civility code.” But protecting Jordan from retaliation would not have changed the law that says harassment must be severe or pervasive to be actionable; it would simply have recognized that an employee may reasonably believe that inflammatory racist rhetoric, if permitted to continue, will beget problems on the shop floor. On paper, IBM seems to be respecting the Supreme Court’s wishes. As noted, the company has issued personnel policies that urge workers to report inappropriate conduct and seem to prohibit retaliation. Now, though, it is evident these policies are mere paper promises and IBM’s employees ought not rely on them. The same is true of the policies of other employers in the 4th Circuit’s ambit — Maryland, Virginia, West Virginia, and North and South Carolina. In short, it is now perfectly understandable if employees choose not to report initial incidents of harassment. This should mean that workers will no longer have cases dismissed, as many have been, for “unreasonably” failing to use internal complaint procedures early enough. This is especially true at IBM. As King noted at oral argument, the company’s position — that it can fire an employee for complaining about an early instance of racism — dooms its ability to rely on its nominal anti-harassment policy in cases in which it seeks to assert the Ellerth/ Faragher defense. Additionally, if complaints like Jordan’s are not protected, the incentive the Supreme Court is seeking to create — to foster early detection and correction — will be supplanted by an inducement to fire complaining employees as soon as possible, before their grievances grow into legal violations. And since the law generally gives greater protection to complaints filed with the EEOC than to those made internally, employee lawyers who wish to avoid malpractice claims will regularly advise workers to “go formal” at the earliest opportunity. Of course, this undermines the effort to reduce litigation by promoting informal resolution by the employer.Can it really be a firing offense to report that another employee referred to African-Americans in language that is universally acknowledged as offensive? The 4th Circuit has observed in prior decisions ( Spriggs v. Diamond Auto Glass (2001) and White v. BFI Waste Services (2004)) that “the word �nigger’ is pure anathema to African-Americans” and that “use of the word �monkey’ to describe African-Americans [is] similarly odious.” So if Robert Jordan could be fired just for complaining about the crude racism that he heard, another employee could be fired simply for reporting someone’s use of other intensely pejorative terms. Ellerth, Faragher, and Suders do not sanction such nonsense. Under the logic of those decisions, workers cannot be punished for reporting instances of harassment that, unattended, could eventually develop into full-blown legal violations. And under this logic, IBM could not fire Jordan with impunity.
Doug Huron is a partner in the D.C. firm Heller, Huron, Chertkof, Lerner, Simon & Salzman, which represents Robert Jordan. Stephen Chertkof helped develop these ideas and argued the appeal in the 4th Circuit.

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