Employers – Do Not Ignore Co-worker Horseplay and Pranks
The U.S. Court of Appeals for the Seventh Circuit found that an employee may have been constructively discharged – meaning that he was effectively fired by being subjected to unbearable harassment – based on extensive co-worker conduct that the employer characterized as “horseplay” and failed to address in a timely and effective manner.
In Stamey v. Forest River, Inc., the 61-year old employee alleged that he was subjected to daily name-calling (e.g. “old b___”, “old man,” “Walmart greeter,” “grandma,” etc.) from dozens of co-workers (at least 1000 incidents over a year), pranks, and graffiti. His complaints to HR were mostly ignored. His complaints to his original supervisor resulted in brief cessations of the harassment, but it always resumed. His new supervisor refused to take any action without certainty about the identity of the perpetrators, even though the employee identified those he suspected. When he then complained to the plant manager, the plant manager told workers to stop the “horseplay” but did not threaten any consequences and did not follow up to make sure the conduct stopped. The employee subsequently quit.
In order to sustain a claim of constructive discharge, an employee must show conditions more egregious than required for a typical hostile environment claim – an extremely high standard. Threats of physical harm meet this standard, but the Seventh Circuit also has found such egregious conditions where an employee alleged a repeated pattern of offensive behavior by a supervisor, retaliatory conduct after filing a complaint, and the employer’s general failure to respond to multiple complaints. In addition, the employee must also show that seeking help from the employer would be futile. In this case, the Seventh Circuit determined that a jury could find that the employee’s allegations met this standard. The multitude of comments, in connection with the pranks and graffiti, could be sufficiently egregious, while the multiple complaints to various management officials could establish the futility of any further complaints.
There are several lessons here for employers. First, managers should not trivialize complaints, but take them seriously and investigate them thoroughly. They should recognize that identifying the perpetrators is not necessary in order to take actions to prevent additional harassment. It is also important to follow up to ensure that the harassment has, in fact, stopped. And it is important to follow up directly with the employee so that they are aware that the company is taking action.