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4th Circuit: ‘Reasonable’ steps block hostile environment claim

A company cannot be held responsible for racist and sexist comments by co-workers so long as it takes steps “reasonably calculated” to stop the hateful banter, a federal appeals court ruled Tuesday in rejecting a black woman’s effort to hold a Waldorf Best Buy liable after a colleague allegedly used more than just the “N word.”

In its published 3-0 decision, the 4th Circuit said Erika Bazemore’s hostile work environment lawsuit against the computer retailer was properly dismissed because the company had issued a “final warning” to the co-worker in response to Bazemore’s complaint to human resources.

Bazemore had argued through counsel that Best Buy’s warning was an inadequate response to co-worker Anne Creel’s alleged use of the phrase “n…. tits” in front of Bazemore and other colleagues. Bazemore, the only black woman in the group, said termination or a storewide statement from Best Buy that such comments would not be tolerated was necessary to remedy the situation.

But the 4th Circuit said a hostile environment claim against a company requires a showing that it knew, or should have known, about the worker-on-worker harassment and “failed to take action reasonably calculated to stop it.” While Bazemore would have preferred a firing or a clear statement, Best Buy’s warning to Creel satisfied its legal duty to address the alleged hostile environment under Title VII of the 1964 Civil Rights Act.

“(T)itle VII does not prescribe specific action for an employer to take in response to racial or sexual harassment, or require that the harasser be fired, as Bazemore suggests should have happened to Creel,” Judge A. Marvin Quattlebaum Jr. wrote for the 4th Circuit. “Once again, it is not our role to micromanage Best Buy’s disciplinary procedures. As a matter of law, Best Buy is only required to discipline in a way reasonably calculated to end the behavior.”

According to Bazemore’s lawsuit, Creel was eating mixed nuts on Feb. 5, 2017, when she pulled out a Brazil nut and asked Bazemore and other nearby co-workers what the nuts used to be called.

After urging her colleagues not to call HR, Creel allegedly looked directly at Bazemore and said, “N…. tits.”

Bazemore lodged a complaint with human resources, which investigated and issued the “final warning” to Creel. Though the harassment stopped, Bazemore said Creel’s continued presence on the staff – as permitted by Best Buy – contributed to Bazemore’s chronic depression and stress.

Bazemore sued Best Buy, alleging she was subjected to a hostile work environment due to her race and gender. Senior U.S. District Judge Peter J. Messitte in Greenbelt dismissed Bazemore’s claim against the company, prompting her unsuccessful appeal to the 4th Circuit.

“Our decision today should not be construed as condoning or even minimizing Creel’s (allegedly) tasteless effort at a joke,” Quattlebaum wrote.

“Instead, our decision is limited to analyzing whether Bazemore’s allegations plausibly state a Title VII hostile work environment claim,” he wrote. “(I)n the case of allegedly harassing comments by a co-worker, an employee must allege plausible facts that the employer knew, or should have known, about the harassment and failed to take action reasonably calculated to stop it. …  Bazemore failed to do this.”

Bazemore was represented on appeal by Washington University School of Law professor Daniel S. Harawa and students in his appellate clinic at the St. Louis institution. Attorneys William W. Carrier III and Emelia N. Hall, of Tydings & Rosenberg LLP in Baltimore, represented Best Buy.

Harawa declined to comment on the decision. Best Buy’s counsel did not return messages Tuesday afternoon seeking comment.

Quattlebaum was joined in the opinion by Judges G. Steven Agee and Julius N. Richardson.

The 4th Circuit rendered its decision in Erika Bazemore v. Best Buy, No. 18-2196.

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