Employers struggle with conduct that appears ambiguous but is interpreted by the “victim” as unlawful.  The dilemma arises most often in a sexual harassment setting.  For example, a co-worker comments that another’s clothes make her “look good” or that he “really likes” her perfume.  Employers, and courts, struggle with the intent behind this conduct.  For example, a recent case involved racial harassment allegations based in part on bananas and banana peels littering the truck of an African-American co-worker. Daily Report Online wrote about this case on its website last week.

Would such anonymous conduct support a claim for a racially hostile environment?  In December 2010, in granting summary judgment to an employer, an Alabama Federal District Court said, “No.”

The Court explained the employee’s evidence (including the bananas and peels anonymously left on the truck) was not sufficient to establish a “severe or pervasive” racially hostile work environment.  The Court noted there is nothing “inherently racist” about a banana, absent direct supporting evidence.  The case is now on appeal to the 11^th Circuit Court of Appeals.  That same court caught significant adverse publicity in 2010 for ruling that the term “boy” directed to an African American co-worker was not racist.  In December 2011, that ruling was reversed on rehearing.

These cases raise challenging questions.  For example, what should an employer do when it learns of workplace conduct that one may consider ambiguous but could also be considered racist (or sexist, etc.)?  In general, the employer’s obligation is prompt and effective remedial action, but what does that mean?

An employer should take steps designed to maintain, or re-establish, the “integrity of its process.”  Employees should know – not just by policies but by real practices – that the employer will address concerns and take steps, as necessary, to address them.  Here is some guidance:

1. Take some action.  Doing nothing is a choice, and a poor one.
2. Talk first with the victim.  Get information about what has happened, how the offended employee interprets the workplace conduct, and why that interpretation.  There may be (and likely is) a significant “back story” that will require further inquiry.
3. Do the further inquiry.  Talk to others in the workplace; even if they have not seen or heard or experienced any such inappropriate conduct, that information is helpful in determining what occurred and its prevalence.
4. Even if the only evidence is the victim’s statement and the anonymous, ambiguous conduct, take some action.  In the case above, trashing an employee’s truck with bananas and peels is, at the very least, unprofessional.  Address it in some manner.
5. Do “follow up” over the next several weeks thereafter with the offended employee (and perhaps others in that work environment) to ensure no additional conduct has occurred.

Employers should remember that these steps are not merely “litigation avoidance tools.”  Rather, these steps – and practicing what your policies “preach” – is part of creating a work environment that promotes job security and fosters positive morale.