Under Title VII of the Civil Rights Act, employers are generally liable for harassing conduct by supervisors, whether or not they knew of the conduct when it occurred. However, the U.S. Supreme Court developed a limited defense applicable to some supervisor harassment claims. This Faragher/Ellerth defense requires that the employer demonstrate (1) no tangible employment action adversely affected the employee as a result of the harassment, (2) the employer exercised reasonable care to prevent and promptly correct harassing behavior, and (3) the employee failed to take advantage of these preventative or corrective opportunities.

Two weeks ago in an unpublished decision, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) concluded that an employer met its burden of demonstrating the Faragher/Ellerth defense in response to a racial harassment claim. In McKinney v. G4S Government Solutions, Inc., the plaintiff was a security officer for an employer under contract to the federal government. He claimed that he had been subjected to a series of racially hostile behavior, including use of the N-word in his presence by a janitor, employees laughing about a noose left outside of his office, and his supervisor jokingly using a piece of canvas to parody a KKK hood.

The plaintiff did not complain about these incidents to his employer, which discovered the allegations from the plaintiff’s co-worker and initiated an investigation of the behavior. The supervisor was suspended and terminated, partially based on the federal agency’s insistence that he be removed from the facility. The employer also required employees involved in the incidents to undergo sensitivity training. The plaintiff was given two counseling notices just prior to the last alleged harassing incident but was promoted and moved to a better shift thereafter. Regardless, he filed suit alleging a hostile working environment based on race.

The Fourth Circuit affirmed dismissal of the claim on summary judgment. The court concluded that the employer had met all requirements of the Faragher/Ellerth defense. First, the plaintiff suffered no tangible employment action resulting from the harassment, as evidenced by his promotion. Disciplinary counseling notices do not constitute adverse actions. Second, the employer had in place an effective anti-harassment policy. Once made aware of the plaintiff’s allegations, it promptly acted to investigate and resolve them. This requirement does not mean that every employee found to have violated the policy must be terminated. Sensitivity training was an appropriate response for some of the perpetrators. The fact that the supervisor was terminated based on the federal agency’s insistence does not affect the adequacy of the employer’s response.

Finally, the plaintiff’s failure to use the employer’s complaint procedures after the initial alleged harassment incidents was not based on any reasonable conclusions regarding the sufficiency of those procedures. This case demonstrates the value of strong HR practices that require an investigation of harassment claims, even if the alleged victim does not come forward with the complaint. The existence of the anti-harassment policy – and demonstrated serious investigations and remedial actions – can mitigate or even defeat later claims that the employer was strictly liable for the harassing conduct.