Last month in an unreported decision, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) concluded that an employer was not liable for its failure to terminate white employees who admitted to leaving a noose near the working area of a black co-worker. In Alford v. Martin & Gass, Inc., the plaintiff was a heavy machine operator and the only black employee on the worksite. He found a black sweatshirt with a noose tied around its neck, and reported the incident to his employer. The employer investigated the incident, and ended up warning three white co-workers who admitted to placing the noose.

The employee subsequently filed suit under Title VII, claiming that the employer's response to the incident was inadequate, and led to later retaliatory behavior by the white employees. The Fourth Circuit disagreed, affirming summary judgment for the employer. In its decision, the court noted that the standard for employer's liability for claims of racial harassment by co-workers is different than that for conduct from supervisors. The employer had no advance knowledge of racial problems at the worksite, and the Fourth Circuit concluded that it acted appropriately when the complaint was made.

Many employers would not have given the employees involved in the noose incident a second chance. Despite the Fourth Circuit's decision in this case, employers run significant risks in retaining employees who have committed serious acts of sexual, racial or other harassment. In addition to having their retention decision second guessed, the employer becomes in essence an insurer for the good behavior of the disciplined employee going forward.