NEWS

By Hassan A. Kanu

Sept. 28 — A black building services foreman at Northern Illinois University who found a hangman’s noose in his work area doesn’t have a triable claim for a racially hostile work environment, the U.S. Court of Appeals for the Seventh Circuit ruled ( Cole v. Bd. of Trs. of N. Ill. Univ. , 7th Cir., No. 15-2305, 9/27/16 ).

Jerome Cole alleged that he was generally mistreated since he was promoted and became the only black foreman in 2009. He said he didn’t have the same privileges as other foremen and that supervisors falsely accused him of things like unauthorized possession of keys. The court dismissed most of these allegations for various reasons and only considered the noose incident.

When Cole reported the noose, a supervisor became upset, asked him why he didn’t get rid of it and “appeared to blame him for finding the noose at all,” Judge David Hamilton wrote in the Sept. 27 decision. A co-worker admitted during an investigation that “nooses had been found in the work area for years,” the judge said.

After speaking with friends who are police officers, Cole took their advice and maintained “a nonchalant facade in the hope of leading the perpetrator to identify himself,” Hamilton said. The detective assigned to look into the incident was later told to stop his investigation “for reasons he did not know,” the court said. The noose disappeared around the same time. The perpetrator was never identified.

An employee who accuses co-workers of bias must show the employer was negligent in discovering or remedying the harassment. In Cole’s case, his supervisor’s decision to give her notes about the noose incident to university police and inform the vice president of public safety and community relations was reasonable, the court said.

Attorney: University Response Not ‘Best Practice.’

Despite its ruling, the court noted that reporting to a third party may not be enough in “perhaps many cases” and that employers could be liable even if a victim “feigns unconcern” about an incident. It based its ruling here on the specific distinguishing characteristics of Cole’s situation—“an incident that lacked any other threatening overtones and that Cole himself characterized as a joke by” a former co-worker.

“The court really decided the case based on these very specific and particular sets of facts, and I’m glad about that,” Rae Vann, general counsel of the Equal Employment Advisory Counsel, an employers' association in Washington, told Bloomberg BNA Sept. 28.

“I don’t think anyone would be wise to take this decision as any indication that they can just sit back once a third party is involved in this sort of thing,” Vann, who was not involved in the case, said.

“If I were advising an HR person on this, I would expect there to be more action taken proactively to prevent recurrence, and to further educate and retrain employees, especially if there’s suspicion that the perpetrator was an employee and not an outsider,” she said.

Vann said she was a bit perplexed by the facts of the case, despite the court holding that a feigned lack of concern doesn’t mean the employer has no responsibility to remedy workplace discrimination.

“I’m not sure that the university could have pursued any other avenues the police hadn’t, or wouldn’t—which isn’t to say that that’s best practice,” Vann said. “An employer in this situation could and should have pursued the investigation all the way through.

Court’s ‘Equivocation’ on Noose Issue Troubling

The court said it wasn't laying down “firm rules” for when a noose in the workplace is or isn't severe enough to be actionable under Title VII of the 1964 Civil Rights Act or other federal bias laws. Vann said she was “troubled” by this.

“The most remarkable thing for me about the case, was what seemed to be equivocation on the impact of a noose in the workplace,” Vann said. “At one point, they mention a noose’s status as a visceral symbol of the death of thousands of African Americans, but then they seem to waffle. It’s unquestionable that the appearance of a noose in the workplace is offensive and stands for something entirely and directly contrary to a harassment-free work environment.”

Fabian John Rosati in Chicago represented Cole. The attorney general’s office represented the university and its officials.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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