The recent Massachusetts Appeals Court decision in Augis Corporation v. MCAD serves as another cautionary tale about the reach of the anti-discrimination laws: employers need to respond promptly to employee complaints of harassment, and they will suffer consequences if they do not cooperate in the discovery process.
The plaintiff in this case was a man of Jamaican descent, who presented evidence at a Massachusetts Commission Against Discrimination (MCAD) hearing that he and his supervisor had had a heated exchange about the employee not making personal calls during work hours. The employee presented evidence that he told the supervisor that he would make the calls if he needed, and that the supervisor then had referred to him as a "f—– n—–" and walked out. The MCAD precluded Augis from offering the testimony of the supervisor after Augis prevented the supervisor’s deposition from occurring.
The former employee alleged, among other issues, that this one incident was part of an ongoing pattern of racial harassment and that numerous earlier reprimands for violating work rules (including the "no personal call" rule) were racially motivated. The MCAD found liability solely on the one incident. The Appeals Court affirmed the MCAD decision.
Three Lessons To Be Learned From This Decision
First, a single racial slur, if "powerfully offensive," is sufficient to create liability.
Second, employers need to respond promptly to employee complaints of harassment. In Augis, the former employee indicated that he repeatedly telephoned a company representative the day after the incident, and each time was told to call back. He submitted a written statement two days later and again received no response. After eight days passed with no response, the employee filed his MCAD complaint. Although Augis may still have been liable even if it responded immediately — under Massachusetts law, employers are strictly liable for the harassing acts of their supervisors — the company may have avoided a claim altogether if it had reacted promptly. Moreover, emotional distress damages may have been reduced.
Third, it is critical for employers to comply with their discovery obligations. The appeals court upheld the hearing officer’s decision not to allow the offending supervisor to testify at the MCAD hearing, finding that the company acted in bad faith when it prevented the former employee’s attorney from taking the supervisor’s deposition.