By: Stacey Rose Harris
Nicole Bazemore is an African-American who worked at Best Buy. One day at work, her white colleague, Anne Creel, held up a hazelnut and said that she used to refer to those kinds of nuts as “N[….]r T[…]s.” Bazemore was deeply offended and reported Creel’s conduct to management. After some time, Bazemore was told that the situation had been addressed, but she was not told specifically what action was taken. Creel did not make these statements again, but she was also not fired. Nevertheless, Bazemore was deeply humiliated by the incident and believed it should have been addressed more publicly and with more severity. She sued Best Buy in federal court in Maryland, asserting a claim of hostile work environment under Title VII of the Civil Rights Act.
Best Buy moved to dismiss Bazemore’s claim, arguing that Creel’s conduct could not be imputed to it. Specifically, to state a claim against an employer for hostile work environment, the plaintiff must allege four elements: (1) that she was subject to unwelcome conduct; (2) based on her race or sex; (3) that was severe enough to make her work environment hostile or abusive; and (4) which conduct is imputable to her employer.
The question of imputation was the subject of the court’s analysis. This element was problematic for Bazemore because the statement was made by a co-worker, not a superior. The law in the Fourth Circuit is that, to show imputation, a plaintiff must allege that the employer knew, or should have known, about the harassment and failed to take action reasonably calculated to stop it. Bazemore had alleged that she informed Best Buy of Creel’s statement; that Best Buy had taken action (albeit not action as forceful as Bazemore would have liked), and that Creel’s conduct did not repeat. Based on Bazemore’s own allegations, she failed to show that Best Buy knew or should have known of the conduct and failed to take reasonable actions to stop it. When the wrongdoer is a superior, it is more difficult for the employer to overcome the burden of showing that it did not know of, or took reasonable actions, to stop the conduct.
Even if Best Buy’s corrective measures were not as strong as Bazemore would have liked, the Court noted that it does not “does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination . . ..” Rather, Bazemore’s allegations that Best Buy did address the situation, and that Creel’s conduct did not occur again, were sufficient to defeat Bazemore’s ability to satisfy the fourth element of her claim.
The take-away of this ruling for employers is to take immediate action in response to racially or sexually offensive remarks, and document those efforts, including follow-up. These kinds of measures may be sufficient to defeat a claim of hostile work environment when the wrongdoer is a colleague, (not a superior) of the plaintiff.