E.E.O.C. v. Pipefitters Ass'n Local 597

• Decision Date: 01 July 2003
• Docket Number: No. 02-2057.,02-2057.
• Citation: 334 F.3d 656
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, and James M. Ferguson, Intervening Plaintiff-Appellee, v. PIPEFITTERS ASSOCIATION LOCAL UNION 597, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

334 F.3d 656

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, and James M. Ferguson, Intervening Plaintiff-Appellee, v. PIPEFITTERS ASSOCIATION LOCAL UNION 597, Defendant-Appellant.

No. 02-2057.

United States Court of Appeals, Seventh Circuit.

Argued February 28, 2003.

Decided July 1, 2003.

Joseph A. Seiner (argued), Equal Employment Opportunity Commission, Office of General Counsel, Washington, DC, for plaintiff-appellee.

Laurence Gold (argued), Bredhoff & Kaiser, Washington, DC, Dennis R. Johnson, McCarthy & Johnson, Chicago, IL, for defendant-appellant.

Catherine Bremer, Bremer & Warner, Chicago, IL, for intervenor-appellee.

Before POSNER, MANION, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

The EEOC brought suit against Foster Wheeler Constructors, the prime contractor on a project to construct a recycling plant in Robbins, Illinois, and a local of the pipefitters union that supplied workers to Foster Wheeler. The suit, based on Title VII and also on 42 U.S.C. § 1981— but the standards are the same under the two statutes, at least so far as bears on this case, Bennett v. Roberts, 295 F.3d 687, 697-98 (7th Cir.2002); Patton v. Indianapolis Public School Board, 276 F.3d 334, 337-38 (7th Cir.2002); Thompson v. Potomac Electric Power Co., 312 F.3d 645, 649 n. 1 (4th Cir.2002)—sought to affix liability to the defendants for the harassment of black pipefitters by their white coworkers. One of the eight pipefitters on whose behalf the EEOC had sued, James Ferguson, intervened in the suit as a plaintiff, as he was entitled to do, 42 U.S.C. § 2000e-5(f)(1), seeking higher damages than those sought on his behalf by the Commission. Foster Wheeler settled, but the case against the union proceeded to a bench trial, which the plaintiffs won. The judge awarded compensatory damages to the EEOC on behalf of the eight black workers totaling $105,000, punitive damages of $50,000, and an injunction against the union's "permitting a hostile work environment based on race to exist for its members at any job site." The union appeals.

The harassment consisted primarily of graffiti scrawled on the interior walls of portable toilets at the construction site— slogans such as "death to all niggers," "your grandmother is such a slut she even fucks niggers," "Fergie [plaintiff James Ferguson], if you don't want to be treated like a nigger, don't act like one," "The shines are ruining this country," and "Fuck Niggers." Additional acts of harassment included the placing of a swastika in a black pipefitter's toolbox, the hanging of a Ku Klux Klan poster in a trailer used by black pipefitters during breaks, and the display of a hangman's noose. That the effect of the graffiti and the other acts, considered together, was to create a hostile working environment for the black pipefitters is not in doubt. The only question is the union's legal responsibility.

Dennis Hahney, the union steward for the Robbins project and also Foster Wheeler's superintendent of pipefitting, and in the latter capacity essentially the superintendent of the pipefitters assigned to the project, was aware of the graffiti, but he did nothing about them until Ferguson complained about the ones that mentioned him. Hahney responded by ordering a foreman to paint over the graffiti; and this was done. Hahney testified that if he were aware of a safety problem he would take action, and indeed that if he had thought the portable toilets needed cleaning he would have seen to it that they were cleaned. But he didn't try to rid the toilets of graffiti. Another union official, Steven Toth, who also knew about the racially offensive graffiti, made no effort to eliminate them either, even though he had on his own initiative ordered the painting over of a drawing in one of the toilets of a penis and a vagina because he thought the drawing might be considered "a little offensive." None of the black pipefitters complained to the union about the racially hostile environment created by their white coworkers except Ferguson, and his complaint was narrowly focused on the graffiti that referred to him rather than on the ones that referred to blacks in general.

An employer who is aware of racial or sexual harassment that is making the workplace intolerable for the targets of the harassment, and does nothing to correct the situation, is guilty of violating Title VII. The EEOC argues that when the harassers and the targets are represented by a union, the union has exactly the same legal responsibility as the employer. Objections come quickly to mind. The employer is in a better position than the union to prevent or eliminate harassment because it can discipline its employees; the union cannot. If a worker complains to the union that he is being harassed, all the union can do is file a grievance on his behalf against the employer; the union cannot eliminate the harassment itself— that is the company's responsibility. Since the employer is both fully liable for failing to take effective measures against coworker harassment and far better positioned to apply such measures, what is to be gained, except litigation clutter, by imposing the same liability on the union? Foster Wheeler Constructors is a substantial firm and there is no suggestion that the EEOC could not obtain, on behalf of the eight black workers who were harassed, full relief against Foster Wheeler, which it also sued and which settled.

A further consideration is that members of different unions, or union and nonunion workers, often find themselves working at the same site. Although the portable toilets in which racial graffiti were found were intended for the use primarily of pipefitters, other workers had access to and sometimes used them and may have been responsible for some of the graffiti. The pipefitters union had no control over workers belonging to other unions, or for that matter over the portable toilets.

Unimpressed by practical considerations —determined, it seems, to show itself as being as formalistic as any court— the EEOC points to section 703(c) of Title VII, which forbids a union "to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color," etc. (emphasis added). It points out that the italicized words are similar to those in section 703(a), which forbids an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color," etc. Therefore, the EEOC reasons, since an employer is guilty of discriminating if it unreasonably fails to correct a problem of coworker harassment, so must the union be. In other words, since the company is legally responsible for harassment by its employees, the union must be legally responsible for harassment by its members (more precisely, by members of the bargaining unit, since the union cannot insist that they become union members), even though they are the same people.

The asserted symmetry between employer and union is spurious. The duties of nondiscrimination imposed by sections 703(a) and (c) have reference to the respective roles of company and union in the workplace. The company, not the union, controls the workplace, including the portable toilets erected at the site for use by the workers. The union is not the company, but the workers' agent in dealing with the company. If it discriminates in the performance of its agency function, it violates Title VII, but not otherwise. Thus a union that refuses to accept blacks as members, or refuses to press their grievances, is guilty of discrimination. But if it merely fails to effectuate changes in the workplace—if for example it urges the company to take steps to prevent harassment and the company fails to do so—the union is not guilty of discrimination, though the company is. Notice that if the EEOC were right, the company would be liable for the union's discriminating against black employees in the grievance process.

The separate spheres, and correspondingly different responsibilities with regard to discrimination, of labor and management are blurred in the present case by the curious dual role of Hahney as union steward and supervising pipefitter. It seems doubtful, though the point is not pressed by any of the parties, that he was even legally eligible to be a union steward. In implementation of the National Labor Relations Act's prohibition against company unions, the Labor Board has ruled that a supervisory employee of the company cannot hold a union post that would create divided loyalty and thus undermine the union. NLRB v. General Steel Erectors, Inc., 933 F.2d 568 (7th Cir. 1991); Local 636, United Ass'n of Journeymen v. NLRB, 287 F.2d 354, 361-62 (D.C.Cir.1961). Hahney's dual role as company supervisor and union steward may have run afoul of this rule, but the only point important to this case is that his dual role makes it unclear whether Ferguson was complaining to him in his capacity as a union steward or in his capacity as a company supervisor. But it is probably the latter. Remember that Hahney ordered a foreman to paint out the graffiti that Ferguson had complained about. When Hahney did this he was acting for the company, because a union official has no authority to order workers to do anything. A union official qua union official cannot order a company foreman to see to it that a portable toilet is repainted any more than he can order the foreman to build a portable toilet.

Ignoring Hahney's anomalous status for the moment, we think the EEOC would if pressed concede that a union is not guilty of discrimination for trying but failing to rectify workplace harassment, and would argue instead that the union must do what it can even if success cannot be guaranteed because the union does not operate the company. But inaction, unless invidious,...