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Federal Court in New York Emphasizes Importance of Non-Discrimination Policies and Training in Denying Employer's Motion for Summary Judgment

November 4, 2003

A U.S. District Judge in New York relied heavily on an employer's failure to distribute a non-discrimination policy to its employees and to train its employees concerning diversity issues in denying the employer's partial motion for summary judgment in a race discrimination and harassment case. Boggs v. Die Fliedermaus (S.D.N.Y., 10/8/2003).

The plaintiffs in Boggs were six African American former hostesses at Le Bar Bat restaurant in New York City. The plaintiffs claimed they were subjected to discriminatory remarks concerning their race. For example, they alleged that members of management referred to them as "dark, light and semisweet chocolate," remarked that it was "chocolate night," referred to them as "you people" and that one manager spoke to one of the plaintiffs in Ebonics for two weeks. In addition, one plaintiff alleged that she was denied a promotion to cocktail waitress because of her race.

In response, the employer alleged that it maintained a culturally diverse workforce and allowed its employees to wear ethnic clothing. The employer further contended that its racial tolerance was demonstrated by the fact that the hostesses, who gave patrons their first impression of the restaurant, were African American.

In denying the employer's partial motion for summary judgment, Judge Sweet noted that "at no time during the Plaintiffs' employment did Le Bar Bat distribute an anti-racial harassment policy, conduct sensitivity training, or discipline any of the defendants for racial and sexual misconduct." Judge Sweet pointed out that the first time the employer distributed such a policy was six months after one of the plaintiffs had complained.

Relying on the Supreme Court's decision in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), Judge Sweet concluded that, while an anti-discrimination policy is not necessary in every case as a matter of law, the absence of such a policy may contribute to the conclusion that an employer did not take effective remedial action in response to an employee complaint. In such a circumstance, according to the court, summary judgment for the employer is inappropriate.

Under the Supreme Court's holdings in Burlington Industries and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), an employer may, in some circumstances, avoid liability for a supervisor's harassing conduct if the employer can show that (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. As the court's decision in Boggs highlights, employers should be vigilant in implementing, distributing, and conducting training concerning an anti-discrimination policy. Failure to do so may put at risk an employer's ability to prove its affirmative defense under Burlington Industries and Faragher.