Co-worker’s racial statements may support discrimination claim

As a recent ruling by a Tulsa federal court shows, an employer may be held liable for the racial bias and conduct of its employees, even if those employees do not work in a decision-making capacity within the company.

Co-worker makes repeated racial epithets

In March 2014, Willie Gilliam, an African-American, was assigned by a temp agency to work at JOCO Assembly, a metal fabricator located in Tulsa, Oklahoma. Gilliam was hired on a 90-day temporary-to-permanent employee basis and worked in the fabrication department, where he made latches for bus windows. A Caucasian co-worker, McCombs, worked in a lead position in the same area but had no authority to hire or fire any personnel.

While on the job, Gilliam claimed that McCombs constantly used racial epithets and repeatedly called him and other African-American employees “n***ers.” On more than one occasion, Gilliam asked McCombs to stop using that language. Gilliam allegedly even reported these racial slurs to management. However, no action was taken, and McCombs continued using the racial epithets. According to McCombs, he felt comfortable using that language because he dated black women, wore his hair in cornrows, and smoked with “the brothers” each day.

A couple months into his employment at JOCO, prior to the completion of his 90-day temporary employee status period, Gilliam got in a verbal dispute with a different co-worker. According to Gilliam, after hearing of the dispute, McCombs came up to him and said, “you n***ers don’t listen” before heading off to speak with the plant manager. The plant manager terminated Gilliam’s employment based on the reports of his conduct. Gilliam, believing McCombs played a part in the termination, brought a racial discrimination suit against JOCO Assembly complaining of disparate treatment, hostile work environment, and wrongful termination.

Court rules lawsuit against employer can continue

JOCO asked the court to dismiss the lawsuit before trial, arguing that Gilliam could not succeed with a racial discrimination claim because he would not be able to establish that he was terminated because of his race. Further, JOCO argued that there was no evidence that the decision-makers who terminated Gilliam’s employment were motivated by race. The only evidence of racial bias within the company came from McCombs’ conduct, and McCombs was not a decision-maker in Gilliam’s termination. In fact, McCombs did not have the authority to terminate any employees.

The court refused to dismiss Gilliam’s lawsuit against JOCO. While the court agreed there was no evidence that the supervisors who actually terminated Gilliam’s employment were motivated by race, the court reasoned that liability against JOCO could be established based on the bias of other employees’ actions – specifically, McCombs’s racial bias. The court stated that McCombs’s racial bias could have had an influence on the other managers’ decision-making process. After all, McCombs was the employee who notified the decision-makers about Gilliam’s verbal dispute with the other employee.

The court also denied JOCO’s effort to obtain dismissal of the hostile work environment claim, holding that Gilliam provided enough facts to prove that he was subject to unwelcome racial harassment and because of that, he subjectively perceived his work environment as hostile.

The takeaway

Generally, employers will be liable for actions taken by the decision-makers within the organization. However, as this case reminds us, employers must remember that there are also situations in which an employer may be held liable for racial statements made by a mere co-worker. Oklahoma courts and the Tenth Circuit Court of Appeals may apply these “cat’s paw,” “subordinate bias,” and “rubber stamp” theories in holding employers liable under Title VII based on the bias and conduct of non-decision-making co-workers.

Gilliam v. JOCO Assembly, LLC, No. 15-CV-0622-CVE-FHM, 2016 WL 6462284 (N.D. Okla. Nov. 1, 2016).