334 F.3d 656 (7th Cir. 2003), 02-2057, E.E.O.C. v. Pipefitters Ass'n Local Union 597

Docket Nº:02-2057
Citation:334 F.3d 656
Party Name:E.E.O.C. v. Pipefitters Ass'n Local Union 597
Case Date:July 01, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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334 F.3d 656 (7th Cir. 2003)



James M. Ferguson, Intervening Plaintiff-Appellee,



No. 02-2057.

United States Court of Appeals, Seventh Circuit

July 1, 2003.

Argued Feb. 28, 2003.

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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.

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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

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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...

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