Jottings By An Employer's Lawyer

Sunday, May 15, 2005

Derivative Discrimination Claim Still Not There In the 7th Circuit


As a union steward, Dennis Walker complained to the warehouse manager about the company's treatment of its black workers, treatment which included but was not limited to:

co-workers singing racially derogatory songs, references to African Americans as “monkeys,” and graffiti including “N-I-G-A” written throughout the warehouse.

Walker, although white, was offended by the conduct. When it was not remedied, and he thought he was being retaliated against, he sued claiming both discrimination and retaliation.

Walker's discrimination claim was not based on his own race, but was more a bystander claim. As the Court noted, while he like any enlightened employee was offended, his claim for derivative discrimination failed because he :

made no attempt to establish that the conduct was so offensive to him as a third party as to render the workplace hostile not only for him but for any reasonable employee who likewise was a bystander rather than a target of the harassment.

Walker v. Mueller Industries, Inc. (7th Cir. 5/11/05) [pdf]. Walker's attempt at a "derivate discrimination claim" was an uphill fight, as the Court itself noted, its prior opinion in Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1180-81 (7th Cir. 1998):

all but closes the door on the notion that an employee who observes workplace hostility but is not a member of the class of persons at whom the harassment was directed may bring a derivative claim for the harassment.

Almost but not quite, as in both Bermudez and here, the Court could avoid deciding whether such a cause of action exists by deciding that there was a lack of proof that the "bystander" suffered a "poisoned environment."

Walker's retaliation claim was more straight forward. If he were retaliated against because of his complaints of racial harassment, he would prevail. Unfortunately for Walker, it failed because he could not show an adverse employment action. All of the incidents of which he complained were ultimately short of what is required to be an adverse employment action, one of the elements for a successful retaliation claim.


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