On 2/9/17, the Eleventh Circuit Court of Appeals affirmed summary judgment for McDonald’s on an ADA hostile environment claim even though there was undisputed evidence that the store manager “frequently joked about [the employee’s] eye and referred to him every day as a ‘cockeyed ass’ or ‘lazy-eyed.’” The employee had asked the manager to stop calling him cockeyed, and the manager responded: “If you don’t like what I say, you can go home” and made the employee clock out. The employee also complained to McDonald’s district manager on one of her visits to the store. The case is Cooper v. CLP Corporation d/b/a McDonalds (11th Cir. 2/9/17).
McDonald’s Anti-Harassment Policy prevents liability. Notwithstanding this evidence, the court ruled in McDonald’s favor because it had an anti-harassment policy that “strictly prohibited” discrimination or harassment based on disability as well as retaliation against an employee who reported harassment. The policy required an employee who believed that he or she had been subjected to discrimination or harassment to immediately report the harassment to the employee’s store manager or McDonald’s Human Resources. The court concluded that McDonald’s had exercised reasonable care to prevent and correct harassing behavior by having this policy and ensuring that it was effectively disseminated to employees. In that regard, the policy was included in the employee handbook and given to all employees when they were hired and they received training on the policy during their orientation.
Complaints to store manager & district manager not enough. The court noted that the employee’s complaint to the district manager did not comply with the reporting provisions of the policy because a district manager was not one of the company representatives designated to receive complaints. Moreover, the court reasoned that the employee could not rely upon his complaint to the store manager himself (who was the one making the inappropriate comments) because, based on the manager’s unhelpful response, the employee had no reason to believe that the name-calling would stop. In these circumstances, the court concluded that the employee was unreasonable in not contacting McDonald’s HR, the other remedial measure identified in the policy. The court reasoned that “once an employer has promulgated an effective anti-harassment policy and disseminated that policy and associated procedures to its employees, then it is incumbent upon the employees to utilize the procedural mechanisms established by the company specifically to address problems and grievances.”
Lessons for employers. The clear and compelling take-away from this decision is that employers should review their anti-discrimination policies as well as make sure that those polices are effectively communicated to employees. At least in the 11th Circuit, if an employer does so, it may have what appears to be an iron-clad defense to a harassment claim if an employee does not strictly follow the reporting requirements in that policy, so long as reasonable reporting options are included (such as two reporting options).
As an aside, it is unfortunate (in my view) that the court’s decision appears to be rewarding bad employer behavior. It is not acceptable that the manager made fun of the employee’s lazy eye or that the store manager told the employee that if he did not like the teasing, he could go home and then forced him to clock out. I also note that in this case, the “bad” behavior did not stop there. The store manager terminated the employee when he did not report to work on the day that his mother gave birth to a stillborn child. The court noted that it was “hotly disputed” whether or not his manager had given him time off to be with his mother during the birth. However, the court said that the employee admitted that when his manager called him and told him to report to work or he would be fired, he did not do so.
Employers are more at risk for being sued and for losing such lawsuits when managers or HR engage in conduct that could reasonably be described as disrespectful, uncaring or abusive. While this decision found in favor of McDonalds even when this “golden rule” was violated, bear in mind that McDonalds still had to go through the expense and hassle of litigation.