White v. BFI Waste Services (4th Cir.) Brief as amicus Dec. 29, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _______________________ Nos. 05-1804L & 05-1837 _______________________ ARNOLD WHITE and DELBERT GASKINS, Plaintiffs-Appellees/Cross-Appellants, v. BFI WASTE SERVICES, Defendant-Appellant/Cross-Appellee. ____________________________________________________ Appeal from the United States District Court for the Eastern District of Virginia ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS AND IN FAVOR OF AFFIRMANCE ____________________________________________________ JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Office of General Counsel Washington, D.C. 20507 (202) 663-4721 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . .2 2. Statement of Facts . . . . . . . . . . . . . . . . . .3 3. The Trial, Verdict and District Court's Decision . . 10 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT I. THE JURY REASONABLY FOUND THAT BFI FAILED TO PROVE AN AFFIRMATIVE DEFENSE UNDER FARAGHER AND ELLERTH.. . . . 13 A. The jury reasonably could have found that BFI failed to prove that it "exercised reasonable care to prevent or correct promptly any harassing behavior." . 14 B. The jury reasonably could have found that BFI failed to prove that plaintiffs "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.". . . . . . . . . . . . . . . 19 II. THE JURY WAS PROPERLY INSTRUCTED AS TO THE ELEMENTS OF A RACIALLY HOSTILE WORK ENVIRONMENT CLAIM. . . . . . . 26 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Barrett v. Applied Radiant Energy Corp., 240 F.3d 262 (4th Cir. 2001) . . . . . . . . . . . . 15, 17 Brown v. Perry, 184 F.3d 388 (4th Cir. 1999) . . . . . . . . . . . . . . 14 Burlington Industries v. Ellerth, 524 U.S. 742 (1998) . . . . . . . . . . . . . 1-2, 13-26, 31 Cerros v. Steel Technologies, 398 F.3d 944 (7th Cir. 2005) . . . . . . . . . . . . . . 15 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . 1-2, 13-26, 31 Gaskins v. BFI Waste Services, No. 02-11832 (E.D. Va.) . . . . . . . . . . . . . . . . .2-3 Gentry v. Export Packaging Co., 238 F.3d 842 (7th Cir. 2001). . . . . . . . . . . . . . . 25 Green v. Servicemaster Co., 66 F. Supp.2d 1003 (N.D. Iowa 1999) . . . . . . . . . . . 21 Harris v. Forklift Systems, 510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . .26-29 Johnson v. MBNA America Bank, 357 F.3d 426 (4th Cir. 2004) . . . . . . . . . . . . . . 12 Johnson v. West, 218 F.3d 725 (7th Cir. 2000). . . . . . . . . . . . . . . 23 Matvia v. Bald Head Island Management, 259 F.3d 261 (4th Cir. 2001) . . . . . . . . . . .14-15, 17 McPherson v. City of Waukegan, 379 F.3d 430 (7th Cir. 2004) . . . . . . . . . . . . . . 21 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) . . . . . . . . . . . . . . . . . 14, 20 Ocheltree v. Scollon Products, Inc., 335 F.3d 325 (4th Cir. 2003), cert. denied, 540 U.S. 1177 (2004) . . . . . . . 12, 14, 24 Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) . . . . . . . . . . . . . . . . . . . 29 Rodgers v. Western-Southern Life Insurance Co., 12 F.3d 668 (7th Cir. 1993) . . . . . . . . . . . . . . . 29 Sharp v. City of Houston, 164 F.3d 923 (5th Cir. 1999) . . . . . . . . . . . . . . 25 Smith v. First Union National Bank, 202 F.3d 234 (4th Cir. 2000) . . . . . . . . . . . . . . 15 Spriggs v. Diamond Automobile Glass, 242 F.3d 179 (4th Cir. 2001) . . . . . . . . . . . . 26, 29 Walton v. Johnson & Johnson Services, 347 F.3d 1272 (11th Cir. 2003), cert. denied, 541 U.S. 959 (2004) . . . . . . . . . . . . 22 Watts v. Kroger Co., 170 F.3d 505 (5th Cir. 1999) . . . . . . . . . . . . .20-21 White v. BFI Waste Services, No.02-1833 (E.D. Va.) . . . . . . . . . . . . . . . . . .2-3 White & Gaskins v. BFI Waste Services, 375 F.3d 288 (4th Cir. 2004). . . . . . . . . . . . . . . .3 Young v. Bayer Corp., 123 F.3d 672 (7th Cir. 1997) . . . . . . . . . . . . . . 22 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . . passim 42 U.S.C. § 1981 . . . . . . . . . . . . . . . . . . . . . passim OTHER AUTHORITY EEOC: Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999), available at www.eeoc.gov/policy/docs/harassment/html . . . . . . 21, 23 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _______________________ Nos. 05-1804L & 05-1837 _______________________ ARNOLD WHITE and DELBERT GASKINS, Plaintiffs-Appellees/Cross-Appellants, v. BFI WASTE SERVICES, Defendant-Appellant/Cross-Appellee. ____________________________________________________ Appeal from the United States District Court for the Eastern District of Virginia ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS AND IN FAVOR OF AFFIRMANCE ____________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and other federal fair employment statutes. In this case, after hearing plaintiffs and others testify that over a multi-year period, three supervisors treated African-American employees demeaningly and used words such as "nigger," "porch monkey" and "boy," a jury found that plaintiffs had been subjected to a racially hostile work environment and that defendant failed to establish an affirmative defense to this claim under Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries v. Ellerth, 524 U.S. 742 (1998). On appeal, defendant makes several arguments which, if accepted, would improperly limit the ability of Title VII plaintiffs to use the statute to obtain redress for workplace harassment. We therefore offer our views to this Court. STATEMENT OF THE ISSUES<1> 1. Whether, based on the record evidence, a reasonable jury could find that defendant failed to prove either or both elements of the affirmative defense set forth in Faragher, 524 U.S. 775, and Ellerth, 524 U.S. 742. 2. Whether the jury was properly instructed as to the requirements for liability for racial harassment under a hostile work environment theory. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment in these consolidated suits under Title VII and 42 U.S.C. § 1981. See Gaskins v. BFI Waste Servs., No. 02-11832 (E.D. Va.); White v. BFI Waste Servs., No.02-1833 (E.D. Va.). In December 2002, each plaintiff brought suit alleging inter alia that he was subjected to a racially hostile work environment. Gaskins docket number ("Gaskins-") 1; White docket number ("White-)1. The district court granted summary judgment dismissing both suits. Gaskins-53, 54, 55; White-56, 57. This Court reversed as to the harassment claims. See White & Gaskins v. BFI Waste Servs., 375 F.3d 288 (4th Cir. 2004). On remand, the suits were consolidated (Gaskins-91; White-96) and tried to a jury. On December 16, 2004, the jury returned a verdict for plaintiffs, rejecting defendant's affirmative defense, and awarded substantial compensatory and punitive damages. Gaskins- 152; White-131. The district court reduced the damage awards but otherwise denied defendant's motions for a new trial and judgment as a matter of law. Gaskins-167; White-133. Defendant filed a notice of appeal (Gaskins-171; White-136), and plaintiffs cross- appealed. Gaskins-173; White-137. 2. Statement of Facts<2> BFI Waste Services is a large company engaged in the business of trash collection, recycling, and disposal. Plaintiffs' Exhibit ("PEx") 27, at 2. Arnold White and Delbert Gaskins, who are both African-American, work as truck drivers at BFI's facility in Merrifield, Virginia. White has been employed there since 1989 (1Tr80-81), Gaskins since 1996. 1Tr136. According to White and Gaskins, as well as other witnesses, two supervisory employees, Jay Smith and Rick Rotenberry, and their boss, Tom Germaine, subjected African-American drivers at the Merrifield facility to frequent racial slurs and other demeaning treatment; the conduct did not stop until 2002, when the last of the offending supervisors left the facility.<3> The most common complaint was that these supervisors called African-Americans "boy," as in "Boy, you will do whatever the hell we ask you to do if you want a job with this company." 1Tr16 (Reed); see also 1Tr51 (Sloan) ("Where you going, boy?"). They also used terms such as "nigger," "porch monkey," "jigaboo," "Zulu warrior," and "you people." See, e.g., 1Tr15 ("get them porch monkeys off the . . . steps"), 1Tr48, ("jigaboos"), 1Tr69-79 ("nigger," "monkey," "boy"), 1Tr87 (same, "Zulu warrior"), 1Tr54 ("Mighty Joe Young"). In addition, they threatened to discipline the drivers and get them fired. 1Tr82 (White) (supervisor would say that, because "the pen is mightier than the sword," he could write up the driver and get him fired). By way of illustration, White testified that Germaine would say: "You do what the hell I tell you to do, you little porch monkey," and "Anytime I tell you to do something, nigger, you do it. If you don't, I'll fix you. Remember, you ain't nothing to me." 1Tr82. Finally, Gaskins, whose wife is white, testified that Smith continually "let [him] know he did not like [Gaskins'] wife being white." 1Tr134; cf. 1Tr11 (Smith asked Reed, "Why [are] you people taking all our white women?"). White drivers were not treated in this fashion. See, e.g., 1Tr84 (White) (contrasting treatment of white and black drivers). Evidence indicated that harassment occurred before the drivers left the facility in early morning, after they returned in late afternoon, and during the day when supervisors arranged to meet the drivers while they were out on their routes. 1Tr91-93, 1Tr120-22, 1Tr157 (slurs were said at and around as well as directly to Gaskins). Witnesses including plaintiffs testified that, at the facility, Smith and Rotenberry, though not Germaine, generally said words like "nigger" "under their breath," just loud enough for nearby persons to hear. 1Tr86-87, 1Tr134-35, 1Tr150-52. However, a customer service representative at the facility from 1997 to 1999 testified that the men typically hung out around her desk during the day and made racial jokes; she also heard them using words like "porch monkey," "jigaboo," and "boy." 2Tr8-10, 2Tr17-22, 2Tr27. There is no evidence that BFI had a formal complaint procedure regarding harassment before 1997. The practice at the Merrifield facility was that employees dissatisfied with a workplace situation should complain "up the ladder," beginning with the first-line supervisor. See, e.g., 1Tr39 (Sloan). The company printed an anti-harassment policy with a complaint procedure in the August 1997 version of its handbook; the policy went into effect in January 1998. 3Tr13-14; see also PEx27 (handbook). That policy identified entities other than immediate supervisors to whom employees could complain and listed an 800 number where employees could "report illegal or unethical behavior privately and anonymously." 3Tr14. Despite adoption of the policy, however, both managers and employees continued to adhere to the old practice of taking complaints "up the ladder." See, e.g., 1Tr138-39 (Gaskins) (company said procedure for complaining about a supervisor was to "go up the ladder"); 2Tr85-86, 89 (Rotenberry) (until prompted about 800 number, recalling that employee could complain up chain of command or contact "labor board"). Conrad Mehan, who served as general manager and then district manager, did not recall there was a formal complaint procedure or 800 number until he was shown a copy of the policy at trial. Compare 2Tr135 ("Formal process, I don't recall one. The rule of thumb was if they had an issue, they would take it to their immediate superior.") with 3Tr13-14 (being shown BFI policy, noting 800 number and other persons who could receive complaints), 2Tr146 (same, being shown successor's policy), and 3Tr31 (admitting he had forgotten about 800 numbers). It was also unclear how familiar the drivers were with any anti-harassment policy or procedures at BFI. Rotenberry, for example, testified that when he was a driver, he "kind of zoned out" during any harassment training, explaining, after "a long day, you only paid attention to what interested you." 2Tr86-87; cf. 2Tr60-61 (Smith "somewhat" understood harassment policy). Similarly, White denied that he received much, if any, training about the complaint procedures, stating "They give you a little letter stating . . . no harassment. But they never show us the steps." 1Tr99. In 1997, before the formal procedure went into effect, White complained to the district manager and James Page, an African- American manager, about an incident at a company picnic. According to White, when Smith saw White arrive with his family in an SUV, he called out, "Hey, boy, you making too much money. I'm going to have to cut you back." 1Tr87-88, 1Tr118. White was later informed that the district manager had told Smith not to comment on how much money employees made (1Tr112), but Smith did not recall receiving any counseling for his conduct. 2Tr46-47. Otherwise, there is little evidence of formal complaints about the harassment of black drivers at the Merrifield facility during this period. Plaintiffs testified that, although the conduct angered and humiliated them, the jobs paid more than they could make elsewhere, and they did not want to risk being fired. See, e.g., 1Tr84 (White); 1Tr140 (Gaskins) (noting that people who complained were "forced to leave"). In addition, White testified, "Who could you complain to? Everybody there was racist." 1Tr82. Sometime in 1998 or 1999, largely at the urging of Norwood Sloan, the drivers began organizing a union to address their "complaints about management" (1Tr39 (Sloan)); a collective bargaining agreement was finally signed in March 2001. 2Tr144. As part of the organizing effort, drivers began funneling their complaints through the union stewards, including Sloan, who agreed to take the complaints to management. See, e.g., 1Tr39-40 (Sloan). White and Gaskins testified that they complained to the shop stewards about Smith's use of "racist" comments and language (1Tr86 (White), 1Tr140 (Gaskins)); Sloan also recalled complaints about Rotenberry. 1Tr44 (Sloan) ("racial comments about white women and black men, that kind of thing"). Moreover, Sloan assured them that he had brought their complaints to management's attention, and had even contacted the corporate offices. 1Tr86 (White). Drivers understood that this was an appropriate vehicle for making a complaint. As White explained, "The shop steward is the one I [was] supposed to complain to. They take it up the ladder." Id. The record further reflects that Sloan did take harassment complaints, including "several" from White and Gaskins, to management. See 1Tr41, 44-45. According to Sloan, he complained "all the way up the ladder, even to corporate" about Smith's conduct and the demeaning use of the word "boy." See 1TR51. More commonly, he complained to managers Page and Mehan. The complaints, however, were generally unavailing. Management "would make some excuse" and "say they were going to investigate" (1Tr46) or Mehan "would say, well, you know, James Page will take care of it. But it wouldn't get taken care of" (1Tr63); shortly after a complaint went up, the drivers would be back complaining about the same kind of conduct. 1Tr46. Gaskins, for example, testified that he did not notice any improvement after complaints were submitted, and no one from management ever talked to him about his complaints. 1Tr140-41; cf. 1Tr52 (Sloan) (no steps were taken to rectify plaintiffs' problems). Sloan, admitted, however, that he did not advise management about supervisors' use of the words "nigger" or "jigaboo." 1Tr59. Mehan admitted that there was a period of time "both during the union campaign and immediately afterwards" when drivers were writing letters complaining to the corporate offices about Rotenberry's offensive language, in particular. 2Tr156; see also 3Tr6 ("quite a bit of letters written about supervisors" including Smith and Rotenberry). He also acknowledged that he understood that Sloan complained on behalf of all the drivers, not merely himself. 2Tr152-52; 3Tr38. In addition, BFI's counsel conceded at trial that at least by 2000 the company was on notice about an EEOC complaint and had been investigating some verbal complaints. 1Tr32-33. In 2000 an HR manager flew in from Phoenix, talked to several drivers but no supervisors, and recommended sensitivity training. 3Tr43-45. There is also evidence that in response to two complaints, supervisors Smith and Rotenberry apologized to Sloan and another employee, respectively, about specific incidents in which each individual was called "boy." See, e.g., 1Tr56-58 (Sloan); DEx11, 12. Shortly afterwards, Smith was promoted and transferred to another location. On cross-examination, Sloan answered "yes" to the question: "isn't it true that after [Smith's apology] Mr. Smith never referred to you as boy and there were no other complaints about him using that term?" 1Tr57. Mehan testified that he repeatedly counseled Smith about his behavior, urging more discretion (3Tr41-42); Smith, however, stated that he was told only about Sloan's individual complaint of racial harassment. 2Tr53-54, 2Tr70; cf. 2Tr91, 2Tr125 (Rotenberry recalled only one complaint). After Smith's departure, White and Gaskins were supervised by Rotenberry. White testified, however, that things did not improve until Rotenberry left in 2002. 1Tr128; see also 1Tr136 (Gaskins). According to Gaskins, Rotenberry's replacement was a "fair man" who "hated racial slurs and comments." 1Tr136. 3. The Trial, Verdict and District Court Decision At trial, BFI's defense was that no harassing conduct (except perhaps occasional use of the word "boy") occurred but if it did, the company did not know about it and, in any event, White and Gaskins did not find it subjectively offensive since they did not personally complain. BFI also argued that it had an effective anti-harassment policy, it reasonably responded to any harassment that it knew about, and plaintiffs unreasonably failed to use the company's complaint procedures. See generally 3Tr177-201. The court instructed the jury that it could find liability if plaintiffs proved inter alia that they "were subjected to slurs . . . or other verbal comments or intimidation of a racial nature," the conduct was "unwelcome" and "sufficiently severe or pervasive to alter the conditions of the plaintiffs' employment and create a racially abusive hostile work environment," and plaintiffs "perceived the working environment to be abusive or hostile." 3Tr147-48. The court added, "Whether the environment constituted a racially hostile work environment is determined by looking at the totality of the circumstances," including the "frequency" and "severity" of the harassing conduct, whether the conduct was "physically threatening or humiliating or a mere offensive utterance" and whether it "unreasonably interfered with an employee's work performance." 3Tr148. The jury was further instructed that, because the alleged harassers were supervisors, the jury must find for BFI if the company proved that it "exercised reasonable care to prevent and correct promptly any harassing behavior" and that plaintiffs "unreasonably failed to take advantage of any preventive or corrective opportunities provided by BFI or to avoid harm otherwise." 3Tr148-49. The jury, as instructed, found for plaintiffs in a general verdict and awarded each man $300,000 in compensatory damages under Title VII and another $300,000 under § 1981 as well as $2 million in punitive damages. See 2005 WL 1667737, at *3 (E.D. Va. June 17, 2005). In ruling on post-trial motions, the district court reduced the compensatory damages to $300,000 since plaintiffs may not recover under Title VII if § 1981 is available. Id. at *4, *12- *14. The court also remitted the punitive damages to $600,000 per plaintiff, finding the actual award to be excessive, and gave plaintiffs the option of accepting the reduced award or a new trial on damages. Id. at *14, *20-*21. The court rejected defendant's other arguments for post-judgment relief. Id. at *21. STANDARD OF REVIEW This Court reviews the denial of a motion for judgment as a matter of law de novo, viewing the evidence in the light most favorable to the nonmovant and "drawing all reasonable inferences in [his] favor without weighing the evidence or assessing the witnesses' credibility." Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (citation omitted) (en banc), cert. denied, 540 U.S. 1177 (2004). "Judgment as a matter of law is proper only if there can be but one reasonable conclusion as to the verdict." Id. (citation omitted). This Court reviews challenges to jury instructions for abuse of discretion. Johnson v. MBNA America Bank, 357 F.3d 426, 432 (4th Cir. 2004). "Instructions are adequate if construed as a whole, and in light of the whole record, they adequately inform the jury of the controlling legal principles without misleading or confusing the jury to the prejudice of the objecting party." Id. (citation omitted). Even if it concludes that the challenged instructions are erroneous, this Court will not reverse "unless the error seriously prejudiced the challenging party's case." Id. (citation omitted). ARGUMENT I. THE JURY REASONABLY FOUND THAT BFI FAILED TO PROVE AN AFFIRMATIVE DEFENSE UNDER FARAGHER AND ELLERTH. In this case, the plaintiffs allege and the jury found that they were subjected to a racially hostile work environment by several supervisors at BFI. In Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), the Supreme Court held that an employer is "subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Accord Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998). Where as here no "tangible employment action" has been taken, however, the employer may establish "an affirmative defense to liability or damages" by proving both that (1) the employer "exercised reasonable care to prevent or correct promptly any [] harassing behavior" and (2) the plaintiff employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. BFI argues on appeal that it is entitled to judgment as a matter of law, or at least a new trial, because the company satisfied both elements of this defense. On the contrary, however, based on the evidence presented at trial, it was not unreasonable for the jury to find, as it did, that BFI failed to establish the affirmative defense. A. The jury reasonably could have found that BFI failed to prove that it "exercised reasonable care to prevent or correct promptly any harassing behavior." This Court has stated that dissemination of an "effective" anti-harassment policy and complaint procedure provides "compelling proof that an employer has exercised reasonable care to prevent and correct sexual harassment." Matvia v. Bald Head Island Mgt, 259 F.3d 261, 268 (4th Cir. 2001) (citation omitted). However, the Court has also made clear that "[m]ere promulgation" of such a policy and procedure is not enough; they must be "reasonably designed and reasonably effectual," neither adopted or administered "in bad faith" nor "otherwise defective or dysfunctional." Brown v. Perry, 184 F.3d 388, 396 (4th Cir. 1999). A policy might be defective, for example, if it does not provide employees with "assurances" that "harassing supervisors [may] be bypassed in registering complaints." See Faragher, 524 U.S. at 808; Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72-73 (1986) (complaint procedure may not insulate employer from liability where it "apparently required an employee to complain first to her supervisor," the alleged harasser); cf. Ocheltree, 335 F.3d at 334-35 (bypass procedure requiring employees to complain to top company officials "seems ill designed" since employee may be "reluctant" to register complaints at that level). In addition, even assuming the policy and complaint procedure are reasonable, the employer must further prove that they were properly disseminated to employees and management and understood by both. See, e.g., Faragher, 524 U.S. at 808 (noting that policy was not distributed to employees). Finally, the employer must prove that it effectively enforces the policy, promptly investigating potential claims, disciplining harassers, and deterring future harassing conduct. In Matvia, for example, as soon as company officials learned of the harassment, they immediately suspended the harasser pending investigation and, on completing an investigation, fired him. 259 F.3d at 265. Similarly, in Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 265 (4th Cir. 2001), when it was alerted independently to possible harassment, the employer immediately retained an outside firm to investigate and, when the harassment was confirmed, fired the harasser. In contrast, in Smith v. First Union National Bank, 202 F.3d 234, 246 (4th Cir. 2000), the company discouraged plaintiff from complaining, the investigation of the complaints was half-hearted, and the harasser essentially received a slap on the wrist. See also Cerros v. Steel Techs., 398 F.3d 944, 953-54 (7th Cir. 2005) (effective remedial action must be reasonably calculated to prevent further harassment under the particular circumstances of the case). Applying these standards to the evidence that it heard at trial, the jury in this case was not compelled to find that BFI proved that it "exercised reasonable care to prevent or correct promptly" the racially hostile work environment that plaintiffs and their witnesses described. BFI contends that it "implemented, publicized and enforced rigorous and effective anti-harassment policies . . . designed to eliminate any concern about making complaints" by allowing employees to complain anonymously. BFI's Brief ("Def. Br.") 19-20. There is evidence, however, suggesting that both the design and implementation of these policies were flawed. We note initially that, while White testified that he was subjected to racial harassment beginning in 1989, the jury heard no evidence that the company had any formal complaint procedures until 1997 or 1998 (3Tr13-14), and the informal practice – that employees must complain "up the ladder" – did not provide an adequate mechanism for bypassing the harassers. The jury could also find, based on White's experience following his complaint to management about the SUV incident, that the remedial measures the company took in response to complaints were not effective at preventing further harassment. Although the district manager told White that he had talked to Smith about the incident, there was no evidence Smith's disrespectful treatment and use of the word "boy" were mentioned. See 1Tr112 (manager said he told Smith not to discuss driver's pay). Moreover, and significantly, Smith did not recall receiving any counseling for the incident (2Tr46-47), and White testified that the harassment did not stop. 1Tr128. As for the formal complaint procedures, while they permit an employee to complain without involving his supervisor, there was evidence that this feature of the procedure was not widely understood by employees or managers. White stated that he was informed about an anti-harassment policy, but was never told "the steps" for making a complaint. 1Tr99. In addition, before being shown a copy of the policy on the witness stand, Conrad Mehan, who served as general manager and later district manager, testified that employees were required to complain up the ladder. See 2Tr135 (recalling no "formal process," noting that "rule of thumb" was to take complaints to immediate superior); 3Tr31 (admitting he had forgotten BFI had an 800 complaint number). There is also evidence that the company's response to complaints remained ineffective after the 1997-98 policy was adopted, contrasting sharply with the responses this Court approved in Matvia or Barrett, for example. Sloan testified that he consistently complained to Page and Mehan on behalf of drivers including plaintiffs. See, e.g., 1Tr44-45 (passed plaintiffs' complaints to management). Mehan, however, would simply refer the complaints back to Page, who would not resolve them, or would "make some excuse and say ‘they were going to investigate,'" but nothing would happen. 1Tr46; see also 1Tr63. Similarly, Gaskins testified that no one in management ever talked to him about his complaints, and he did not notice any improvement at the facility. 1Tr140-41; see also 1Tr128 (White); 1Tr52 (Sloan) (no steps were taken to "rectify [plaintiffs'] problems"). Viewed as a whole, this evidence, if believed, was more than adequate to rebut BFI's arguments on this first element of its defense. In arguing that a reasonable jury must nevertheless find its policy effective, BFI makes the remarkable assertion that only four complaints of racial harassment were ever made. Def. Br. 8, 19-20, 23 (noting "concerns about use of the word ‘boy' on a couple of occasions"). The jury was not required to accept this tabulation, however, in light of evidence that the numbers were much higher. As noted above, Sloan, for example, testified that he repeatedly complained to management (1Tr46, 63), and even Mehan admitted that BFI received "quite a bit of letters" complaining about the supervisors. 3Tr6; 2Tr156. Ignoring this inconsistent testimony, BFI points to evidence that it took steps to address two individual complaints, one involving Smith and Sloan, the other involving Rotenberry and another driver. Def. Br. 20. Based on the record, however, the jury reasonably could have believed that BFI's response was inadequate – too little, too late. Although Mehan's testimony, noted above, can fairly be read to mean that BFI received numerous complaints about the supervisors, Smith testified that he was told only about a single complaint. 2Tr53-54, 2Tr70. He was merely asked to apologize and was promoted soon thereafter. 2Tr53-56. As for Rotenberry, he also recalled only the one incident about his using the word "boy" (2Tr91, 2Tr125); he received only a warning memo. 2Tr92. In addition, while defendant notes that an HR person flew in from Arizona to investigate the complaints, according to Mehan, she simply recommended "sensitivity training." 3Tr43-44. BFI asserts that Sloan's affirmative response to a question on cross-examination confirms that Smith stopped calling drivers "boy" after he apologized to Sloan in 1999. Def. Br. 20. The jury could find, however, that Sloan's testimony as a whole, including his statement that BFI did nothing to rectify plaintiffs' complaints, suggests that Smith stopped calling Sloan "boy" but did not stop harassing other drivers. In any event, plaintiffs testified that the harassment did not abate until Rotenberry left in 2002. 1Tr128 (White); 1Tr136 (Gaskins). Contrary to BFI's assertions, therefore, the jury need not have found that the company "exercised reasonable care to prevent and correct any harassing behavior." Instead, the jury reasonably could have found that BFI failed to establish the first element of the affirmative defense. B. The jury reasonably could have found that BFI failed to prove that plaintiffs "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Even if the company carried its burden on the first element, the jury reasonably could have found that it failed to establish the second element – that plaintiffs "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U.S. at 765. The company initially argues that plaintiffs' conduct was unreasonable because White complained to management only once – about Smith's "relatively innocuous" SUV comment – despite enduring egregious harassment for many years. Def. Br. 21-22. As noted above, however, a large part of the harassment occurred before the company adopted any formal complaint procedure. The jury could find that White's failure to complain during this period was not unreasonable since the practice was to take complaints "up the ladder," and those responsible for the harassment – Smith, Rotenberry, and Germaine – occupied not only the first but also the second rung of that ladder. See Meritor, 477 U.S. at 72-73. See also 1Tr140 (Gaskins) (noting that people who complained were "forced to leave"). The jury could also find that, when White did bypass these rungs by complaining directly to Page and the district manager, no effective remedial action was taken. The company also argues that it established the second element because plaintiffs failed to use "BFI's complaint procedure." The jury, however, could have found that plaintiffs' failure to file formal complaints was not unreasonable since they took complaints to the union steward and reasonably believed that he would bring them to management's attention. The second element of the Faragher/Ellerth defense has two parts: the employer must prove that plaintiffs unreasonably failed to take advantage of remedies the employer provided and "to avoid harm otherwise." See Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Courts and the Commission have concluded that complaints to a union official may constitute a reasonable means of "avoid[ing] harm otherwise." See Watts v. Kroger Co., 170 F.3d 505, 510-11 (5th Cir. 1999) (since "both the employer and union procedures are corrective mechanisms designed to avoid harm," using union grievance procedure comports with Ellerth's statement that employee should "take corrective opportunities provided by the employer" or "avoid harm otherwise") (citing 524 U.S. at 765); Green v. Servicemaster Co., 66 F. Supp.2d 1003, 1015 (N.D. Iowa 1999) (denying summary judgment on affirmative defense where plaintiff complained to her "lead" man, who was also union steward); EEOC: Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, No.915.002, at *32 (June 18, 1999) ("A union grievance could also qualify as an effort to avoid harm."), available at www.eeoc.gov/policy/docs/harassment/html; cf. McPherson v. City of Waukegan, 379 F.3d 430, 441-42 (7th Cir. 2004) (plaintiff unreasonably failed to complain when she neither used employer's complaint procedure nor filed grievance). Accordingly, here, the jury reasonably could have found that the union grievance procedure was a reasonable means of otherwise avoiding harm and that plaintiffs' reliance on the procedure was not unreasonable. Evidence indicated that plaintiffs understood this to be an acceptable complaint mechanism. As White explained, "The shop steward is the one I [was] supposed to complain to. They take it up the ladder." 1Tr86. White also testified that the shop steward assured drivers he had taken their complaints up the ladder (id.), and Sloan confirmed he had in fact conveyed some complaints to management. 1Tr44-45. That the stewards would handle these complaints makes sense since, the jury could find, the union itself was organized to address drivers' complaints about management. See 1Tr39 (Sloan). Nor is there evidence that Mehan objected to having the steward act as point person for the complaints or insisted that the drivers file their own complaints even where the complained-of conduct was not unique. BFI argues that plaintiffs' complaints to Sloan cannot excuse their failure to file formal complaints under the harassment policy because an employee "does not fulfill his [] duty" to report harassment by complaining to third parties. Def. Br. 23 (citing Walton v. Johnson & Johnson Servs., 347 F.3d 1272, 1289 n.15 (11th Cir. 2003)). The Walton court rejected an argument that the plaintiff adequately complained by talking to a friend who worked at defendant's parent company. The case is inapt, however, since the friend in Watson was not authorized to accept complaints and did not promise to convey complaints to the responsible officials, so the communication was not reasonably calculated to reach the proper authorities. See Young v. Bayer Corp., 123 F.3d 672, 675 (7th Cir. 1997) (plaintiff must "complain to someone who could reasonably be expected to refer the complaint up the ladder to the employee authorized to act on it"). In contrast, here, the jury reasonably could have found that plaintiffs had every reason to expect their union steward to fulfill his promise to convey their complaints to management, particularly since amassing and conveying complaints were viewed as central to the union organizing effort, and Sloan, as steward, repeatedly met with management about the complaints. Finally, BFI argues that this Court should insist that employees file their own complaints and use only the employer's complaint procedure because a third party may not convey all the employee's grievances to the employer. Indeed, the company states, a "danger[] of allowing complaints to third parties to satisfy the employee's obligation" is "starkly illustrated" by the facts in this case since Sloan admitted he did not pass along the "more egregious slurs" but rather focused on supervisors' use of "boy." Def. Br. 23. This statement suggests that BFI mistakenly believes that Faragher and Ellerth provide a defense to liability for supervisory harassment anytime an employer's failure to address harassment is not its fault. They do not. To avail itself of the defense, an employer must establish both that the failure to respond was not its fault – because it had an effective anti- harassment policy – and that it was the plaintiffs' fault – because they unreasonably failed to take steps to protect themselves. "If both parties exercise reasonable care, the defense will fail." See EEOC: Enforcement Guidance at *14; cf. Johnson v. West, 218 F.3d 725, 731-32 (7th Cir. 2000) (even if employer acted reasonably, affirmative defense fails unless employer also proves that plaintiff acted unreasonably). Thus, here, even if the jury had found that the failure to remedy the supervisory harassment at the Merrifield facility was not BFI's fault because it had an effective policy, the jury could have found that plaintiffs likewise were not at fault since they reasonably (even if incorrectly) believed that Sloan, a union representative, would convey their complaints to management. The possibility that some complaints that plaintiffs or others made to Sloan were not passed along to management does not necessarily establish that plaintiffs unreasonably failed "to avoid harm otherwise," within the meaning of the affirmative defense. Furthermore, the record would support a finding that plaintiffs' failure to file formal complaints about the "more egregious" slurs did not deprive BFI of an opportunity to take effective action in this case. There is evidence that BFI was aware that drivers were complaining about racial harassment by the supervisors, but the company failed to ascertain the scope of the problem. Indeed, the district court noted that the jury could reject the company's affirmative defense based on a finding that it had constructive notice of the harassment. 2005 WL 1667737, at *8. BFI argues on appeal that constructive notice is relevant only in cases involving coworker harassment. Def. Br. 27-29. On the contrary, evidence that an employer failed to take action when it knew or should have known about supervisory harassment is manifestly relevant to the question of whether the employer has established an affirmative defense. Cf. Ocheltree, 335 F.3d at 334 (employer "cannot avoid Title VII liability [for a hostile work environment] by adopting a ‘see no evil, hear no evil' strategy"); Sharp v. City of Houston, 164 F.3d 923, 930 (5th Cir. 1999) ("If harassment was so open and pervasive that the employer should have known of it had it but opened its corporate eyes, it is unreasonable not to have done so, and there is constructive notice."). The purpose of the reporting requirement is to encourage employers to adopt and enforce harassment policies, so as to prevent further harassment and discrimination. Ellerth, 524 U.S. at 764; Faragher, 524 U.S. at 806. Adopting BFI's argument that the employer should be off the hook if a plaintiff fails to complain regardless of whether the employer is already on notice of the offending conduct would seriously undermine that purpose. BFI characterizes the conduct Sloan complained of as "relatively innocuous." Def. Br. 21. That may be so, compared to the egregious slurs he chose not to pass along. Id. at 23. However, even if all BFI knew was that the African-American drivers were angry because the supervisors were treating them disrespectfully and calling them "boy," the company was under an obligation to take all reasonable steps to ensure that such racially derogatory treatment stopped immediately and did not reoccur. Cf. Gentry v. Export Pkg Co., 238 F.3d 842, 849-50 (7th Cir. 2001) (jury reasonably could find that plaintiff's stated discomfort about workplace hugging placed employer on notice of "potential harasser" even though she consciously chose not to say "sexual harassment"). Since, on the record, the jury reasonably could have found that BFI did not do even that, its finding that BFI failed to prove its affirmative defense is sound and should not be disturbed. II. THE JURY WAS PROPERLY INSTRUCTED AS TO THE ELEMENTS OF A RACIALLY HOSTILE WORK ENVIRONMENT CLAIM. Alternatively, BFI argues that it is entitled to a new trial because the district court's jury instructions on the elements of a hostile work environment claim were faulty. On the contrary, the instructions given to the jury closely tracked the Supreme Court's articulation of the elements of a hostile work environment claim in Harris v. Forklift Systems, 510 U.S. 17, 21 (1993). The instructions, therefore, were entirely appropriate. The Supreme Court has held that, to establish an actionable hostile work environment, plaintiffs must establish that the harassment they were experiencing was sufficiently severe or pervasive to create an objectively hostile or abusive work environment and that they subjectively perceived the environment as abusive. See Harris, 510 U.S. at 21. According to the Court, whether an environment is hostile or abusive can be determined only by looking at "all of the circumstances" including the "frequency of the discriminatory conduct," its "severity," whether it is "physically threatening or humiliating," and/or whether it "unreasonably interferes with an employee's work performance." Id. at 23; accord Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001). In instructing the jury as to the elements of the hostile work environment claim in this case, the district court closely tracked the Harris Court's articulation of the elements of a hostile work environment claim. Specifically, the jury was told that it could find liability only if plaintiffs proved "by a preponderance of the evidence" inter alia that they "were subjected to slurs . . . or other verbal comments or intimidation of a racial nature," the conduct was "unwelcome" and "sufficiently severe or pervasive to alter the conditions of the plaintiffs' employment and create a racially abusive hostile work environment," and plaintiffs "perceived the working environment to be abusive or hostile." 3Tr147-48. The court further explained that "[w]hether the environment constituted a racially hostile work environment is determined by looking at the totality of the circumstances," including the "frequency" and "severity" of the harassing conduct, whether the conduct was "physically threatening or humiliating or a mere offensive utterance" and whether it "unreasonably interfered with an employee's work performance." 3Tr148. It was pursuant to these instructions that the jury found defendant liable. Ignoring the similarity between the instructions in this case and the language in Harris, BFI challenges the instructions on two related grounds. First, the company argues that the instructions were deficient because they did not inform the jury that it must find that the plaintiffs personally found the slurs abusive. See generally Def. Br. 50-54. That is simply wrong. The jury in fact was told that plaintiffs were required to prove that they "perceived the working environment to be abusive or hostile." 3Tr148. Moreover, there was ample evidence from which the jury could find that plaintiffs subjectively found the environment abusive. As the district court noted, for example, White testified that the harassment made him very angry and that the stress of putting up with it would "eat inside you like cancer." 2005 WL 1667737, at *13. Eventually, he was forced to consult a doctor for treatment of the stress. 1Tr96. Similarly, Gaskins testified that his friends began avoiding him and his children became fearful of him because of his "nasty attitude." 1Tr141-43. If the jury believed this testimony – as it clearly did – it could reasonably find that plaintiffs satisfied this element of the claim. Although the company argued to the jury, as it does to this Court (Def. Br. 52), that plaintiffs must not have been offended since they endured the harassment for many years to preserve their jobs, the jury was not required to draw this inference. Second, the company argues that the instructions were infirm because they did not provide sufficient guidance as to how the term "severe or pervasive conduct" is "defined." Def. Br. 51-52. The company cites no relevant authority for its position that some settled "definition" of this term exists. There is none. As the Supreme Court explained in Harris, "[t]his is not, and by its nature cannot be, a mathematically precise test." 510 U.S. at 22. Instead, "whether an environment is ‘hostile' or ‘abusive' can be determined only by looking at all of the circumstances." Id. at 23 (listing factors); see also Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998) (noting that courts and juries can use "[c]ommon sense, and an appropriate sensitivity to social context" in deciding whether challenged conduct is sufficiently severe or pervasive). That is exactly what the jury was instructed to do here. Compare 3Tr148, quoted above. While BFI was, of course, free to argue its own "definition" to the jury, the court's decision to instruct the jury in accordance with Harris was hardly, as defendant claims (Def. Br. 52), "irredeemably flawed and unconvincing." It appears, however, that BFI's challenge to the jury instructions is simply a backdoor means of attacking the jury's finding that Smith, Rotenberry, and Germaine regularly subjected plaintiffs, and other African-American drivers, to racially derogatory treatment including slurs that this Court has described as "pure anathema to African-Americans." See Spriggs, 242 F.3d at 185 ("nigger," "monkey"); see also Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) ("Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger' by a supervisor in the presence of his subordinates.") (quotation omitted). BFI disagrees with this finding, but the only "prejudice" it has identified from the instructions is the fact the jury chose to credit plaintiffs' witnesses, rather than defendant's. We therefore urge this Court to reject BFI's arguments and hold that courts need not substitute a lengthy "definition" of "severe or pervasive" for the common- sense "totality of the circumstances" test articulated by the Supreme Court. There can be no doubt that the jury here was adequately instructed in accordance with Supreme Court jurisprudence. BFI's request for a new trial on this ground should, therefore, be rejected. CONCLUSION For the foregoing reasons, defendant's challenges to the jury verdict on the affirmative defense under Faragher and Ellerth and to the jury instructions on liability should be rejected. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel __________________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Office of General Counsel Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32, I certify that this brief was prepared with Word Perfect, Courier New (monospaced) typeface, 12 point font, and contains 6886 words, from the Statement of Interest through the Conclusion. ____________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I, Barbara L. Sloan, hereby certify that two copies of the attached Brief of the Equal Employment Opportunity Commission As Amicus Curiae were sent this 29th day of December, 2005, by first class mail, postage prepaid, to: Ronald A. Lindsay Christina S. Pignatelli SEYFARTH SHAW 815 Connecticut Avenue, N.W., #500 Washington, DC 20006-4004 Christopher E. Brown BROWN, BROWN & BROWN P.C. 6269 Franconia Road Alexandria, VA 22310 __________________________ Barbara L. Sloan ********************************************************************** <> <1> We take no position on any other issue in the case. <2> Because the Commission does not have a copy of the Joint Appendix, cites are to the three-volume trial transcript (“1Tr”, “2Tr,” “3Tr”) and exhibits. <3> Germaine was fired for unrelated reasons in 1999 (3Tr21-22), Smith was promoted and transferred to another facility in approximately 2000, and Rotenberry quit in 2002. 2Tr93.