Alan Schorrs Employment Case of The Week ending October 19, 2012
E.E.O.C. v. Holmes & Holmes Indus., Inc., No. 2:10 CV 955 (DAK), 2012 WL 4811209 (D.Utah, October 10, 2012)
The N word is front and center in this weeks Case of the Week, EEOC v. Holmes & Holmes Indus., Inc., from the District Court of Utah. The fact pattern is most egregious, and the arguments set forth by the Defendants are shocking, but typical of defenses that I have come across in bringing N word cases. The case provides some very good sound-bytes and explores the full range of defenses that are routinely used in defending N word cases.
The EEOC brought suit on behalf of two African-American brothers, Joby and Antonio Bratcher, who worked as fire watch employees at the Chevron site of Holmes & Holmes Industrial. All of the Bratchers supervisors were Caucasian, as were the owners of the company. The very detailed fact pattern reveals that it was undisputed that the Bratchers were subjected to the N word on an almost daily basis by their supervisors and the project manager. They were regularly subjected to insults, jokes, and epithets using the words N*gger and N*gga. (The opinion uses the actual words. I choose not to for this article.)
The EEOC brought a motion for Summary Judgment for liability on a Title VII hostile working environment claim. The Defendants countered with a motion for sanctions, claiming that the brothers perjured themselves by claiming that they were not friends of the most egregious harasser. The Defendants also brought a motion in limine seeking to introduce evidence that the Bratchers were musicians and regularly used the words N*gger and N*gga as lyrics in their own musical compositions.
The Court applied a two part test under Title VII to determine whether to grant summary judgment on the hostile working environment claim. The first test is the objective test – whether the actions by the defendants are objectively offensive. The second test is the subjective test – whether the plaintiff was actually offended. The Court granted summary judgment in the Plaintiffs favor on the objective standard, finding no reasonable jury could conclude that the Bratchers’ work environment was not permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of [their] employment and create an abusive working environment. The Court denied summary judgment on the subjective standard, however, finding that there was some slim evidence from co-workers who testified that they did not think that the Bratchers were actually offended, and therefore, it was still a jury question.
The Judge was furious with the Defendants for filing a motion to hold the Bratchers in contempt for allegedly lying about the fact that the most prominent harasser was not a friend. There was evidence that the person who regularly racially insulted them had invited them to a childs birthday party, they had invited this supervisor to their recording studio and there was a photograph of a fishing trip together. The Court denied the motion, holding that terms like friend and personal relationship are relative and cannot form the basis for perjury. The Judge stated:
The court concludes that Defendants’ motion is wholly without merit. The court is more inclined to sanction Defendants’ for bringing the motion than it is to grant the motion. The court discourages such aggressive litigation tactics as they are a waste of the parties’ and court’s time and resources.
Finally, the Court addressed the Defendants motion to rule admissible the music and videos made by the Bratchers, in which they regularly use both n*gger and n*gga. This is a common tactic in racial harassment cases. Defendants often argue that these words are used in rap music that African-Americans make and listen to, and that some African-American use those words in their interactions with each other. Here again, the Court ruled that first, the Bratchers artistic endeavors outside of work are irrelevant to the question of whether they were offended when their Caucasian supervisor used such epithets at work. Rap lyrics contain a significant amount of crude language and words that could be offensive to many members of the jury while there is no evidence that the Bratchers used this kind of language at work.
As Defendants use these arguments to excuse inexcusable behavior and instead blame African American employees and rap music for inviting racial harassment, this case is important because of the clarity of the facts and the total rejection of the Defendants attempts to blame harassment on the victims.
Plaintiffs Counsel – For EEOC: Amy J. Oliver, US Attorney’s Office, Salt Lake City, UT, Hillary K. Valderrama, Mary Jo O’Neill, Andrea G. Baran, Richard I. Sexton, Sally C. Shanley, Equal Employment Opportunity Commission, Phoenix, AZ; for Plaintiff Intervenors Bratchards – David B. Havas, David Bert Havas PC.
Defendants Counsel: Ruth A. Shapiro, Robert Scott Gurney, Christensen & Jensen PC; Gary L. Johnson, Zachary E. Peterson, Richards Brandt Miller Nelson, Salt Lake City, UT, for Defendants in Intervention.
District Court Judge: Dale A. Kimball, U.S.D.J.