Whistleblowers often complain about how they feel shunned at work. Who wants to endure the taunting and risk of retaliation that comes with hanging around a whistleblower? A recent decision from the Sixth Circuit federal Court of Appeals now makes it clear that employees can sue for discrimination based on harassment against any level of association with protected co-workers. The case is Barrett v. Whirlpool Corp., ___ F.3d ___, 2009 WL 425969, No. 08-5307 (6th Cir. Feb. 23, 2009).
Lynette Barrett, W. T. Melton, and Treva Nickens worked for Whirlpool Corporation in Tennessee. All three are Caucasian, but they reported a series of harassing and hateful racial epithets at work. Nickens had worked at the plant for 22 years, and was directly taunted for her friendship with African Americans. She was taunted just for visiting with her black co-workers. The verbal harassment made her afraid to leave work alone for fear that she would be assaulted.
The district court had dismissed Nickens' claims after finding that she did not have a sufficient degree of association with the black co-workers. It explained that the friendships were just “the casual, friendly relationships that commonly develop among co-workers but that tend to be limited to the workplace.” The Court of Appeals recognized that, "the degree of association is irrelevant, and that 'the key inquiries should be whether the employee has been discriminated against and whether that discrimination was ‘because of’ the employee’s race.'” Quoting Drake v. 3M, 134 F.3d 878, 884 (7th Cir. 1998). It is the harasser who decides what level of association is sufficient to provoke the harassment. If the harassment is on account of race, it is unlawful no matter what the level of association. While the Barrett Court did not address the issue, employees should be protected from harassment for associating with another race, even if they had no such association at all. This would be equivalent to whistleblower claims in which the employee suffering from retaliation was not the whistleblower, but the victim of mistaken identity. See Reich v. Hoy Shoe, Inc., 32 F.3d 361, 368 (8th Cir. 1994); Brock v. Richardson, 812 F.2d 121, 123-25 (3d Cir. 1987).
The court also held that, "Discriminatory harassment is impermissible whether it is based on the victim's association with protected employees or on the victim's advocacy for protected employees; both types of harassment contribute to a hostile work environment." The Court of Appeals then made a helpful observation harassment needs to be "severe" or "pervasive," not both. The Court sent the case back to the district court to hold a trial on Nickens' claim of racial harassment.
The Court did not find any merit to the claims of the other employees who witnessed and reported racial harassment, but were not the targets of the racial remarks. Also, the Court rejected the claims of retaliatory harassment. Strangely, it rejected even Nickens' retaliation claim after finding evidence that Nickens' had complained about the racial harassment, and that she had been prevented from applying for promotions. The Court held that she had not established that the discrimination was on account of her conduct, but only because of her association with those of a different race.
Still, the decision puts employees on firm ground when they complain about "severe" or "pervasive" harassment merely for associating with whistleblowers. So go ahead, take a whistleblower to lunch.