In MacMillan v. Millenium Broadway Hotel (SDNY June 11, 2012), the Southern District of New York found that the plaintiff successfully proved that he was subject to a racially hostile work environment. While at work plaintiff encountered a voodoo doll with a “black face and pink lips” hanging from a bulletin board by a rope around its neck which, according to trial testimony, “evoked a lynching”. Plaintiff and other employees were obviously offended. While the hotel issued a letter of apology to all employees, “stated that harassment of any sort would not be tolerated”, and offered “dignity-at-work training” – yes, really – it did not terminate or discipline anyone as a result of the incident.
The jury found for plaintiff on his hostile work environment claim, and the court refused to set aside the verdict. It held that the single voodoo doll incident was “sufficiently severe to alter the terms” of plaintiff’s employment and create a hostile work environment:
Here, the jury was entitled to find that the display of the voodoo doll — which deeply offended McMillan and many of his co-workers, some of whom found the display evocative of lynchings of black men — was serious enough to work a transformation of McMillan’s workplace. The jury was likewise entitled to find that the voodoo doll display — a black-faced doll hung by what some employees took to be a noose — was exceedingly severe and sufficient, in and of itself, to create a hostile work environment.
The court also found that plaintiff sufficiently proved that the harassment was “based on” or “motivated by” his race:
To a great extent, the outcome of the trial turned on the jury’s conclusions regarding Scudero’s intent in pinning the voodoo doll to the bulletin board. The issue of intent in a discrimination case presents a classic jury question. … In displaying a black-faced voodoo doll on an Engineering Department bulletin board — hanging by a string wrapped around the doll’s neck — Scudero chose to exhibit what McMillan and other minority employees regarded as an extremely inflammatory racial symbol. Although Scudero offered an explanation for the display that was not race-based …, the jury was free to reject that explanation. … Moreover, the jury was entitled to consider McMillan’s testimony that he had indicated to Scudero that he was offended by the voodoo dolls, but that Scudero nonetheless decided to hang one of the dolls on an Engineering Department bulletin board. The jury was also entitled to consider [a] statement to McMillan that the doll represented McMillan.
In determining whether the Hotel had acted with discriminatory intent, the jury was also permitted to consider the repeated use of derogatory racial remarks by McMillan’s co-workers in the Engineering Department, as well as the adequacy of the Hotel’s response to those incidents.
Defendant also failed to establish its affirmative defenses as a matter of law. In particular, notwithstanding the hotel’s “lengthy investigations”, it did not terminate or discipline any employee, and apparently never concluded that “anyone had done something wrong.” The jury was entitled to conclude that the hotel’s response to plaintiff’s complaint was not appropriate or adequate, and that the voodoo doll’s display was not a “petty slight or trivial inconvenience.”
The lesson here, of course – in addition to the general rule of thumb that bringing voodoo into the workplace will probably end badly – is that what we truly need are more “dignity-at-work” training programs.