- Best Buy was not liable for one employee's racist comment to another because the harassment could not be imputed to Best Buy, concluded the 4th U.S. Circuit Court of Appeals (Bazemore v. Best Buy, No. 18-2196 (4th Cir. April 21, 2020)).
- Erika Bazemore's complaint alleged that a co-worker told her and a group of other employees a racially and sexually charged joke that used a slur while "look[ing] directly at Bazemore." Bazemore, who is African-American, reported the incident to HR the next day. HR followed up with Bazemore two weeks later and told her the matter had been handled and the case closed. Bazemore felt her complaint had not been given "any real attention" and was unable to determine what had been done, despite asking HR directly.
- The 4th Circuit said that because the alleged harasser was a co-worker rather than supervisor, in order for Best Buy to be liable, there had to be evidence "that Best Buy knew, or should have known, about the harassment and failed to take action reasonably calculated to stop it." Bazemore admitted that HR had followed up on her complaint, and she did not allege that she was harassed again. For this reason, said the 4th Circuit, Best Buy was not liable.
According to the U.S. Equal Employment Opportunity Commission (EEOC), an employer may be automatically liable for harassment by a supervisor if it results in an averse employment action such as termination, failure to promote or hire, or loss of wages.
If supervisor harassment creates a hostile work environment, the EEOC also noted, the employer can avoid liability only if it can prove that it reasonably tried to prevent and promptly correct the harassing behavior, and that the employee failed to take advantage of any preventive or corrective opportunities.
The standard is different, however, for non-supervisor harassment. The EEOC says an employer is liable for harassment by co-workers or non-employees it exercises control over (such as independent contractors or on-site customers) only if it knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action.
The court in this case noted that an employer's response to a harassment complaint doesn't need to be perfect. While plaintiffs often feel that their employer "could have done more," said the 4th Circuit, Title VII requires only that an employer "take steps reasonably likely to stop the harassment."
Regular training for both supervisors and non-supervisory employees is an important part of creating a harassment-resistant workplace, experts previously told HR Dive. Additionally, all complaints should be investigated right away and handled in an appropriate and consistent manner, they said.