797 F.2d 1417 (7th Cir. 1986), 85-2401, Hunter v. Allis-Chalmers Corp., Engine Div.

Docket Nº:85-2401.
Citation:797 F.2d 1417
Party Name:Alvin HUNTER, Plaintiff-Appellee, v. ALLIS-CHALMERS CORPORATION, ENGINE DIVISION, and Andre J. Lambert, Defendants- Appellants.
Case Date:July 30, 1986
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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797 F.2d 1417 (7th Cir. 1986)

Alvin HUNTER, Plaintiff-Appellee,



Lambert, Defendants- Appellants.

No. 85-2401.

United States Court of Appeals, Seventh Circuit

July 30, 1986

Argued April 15, 1986.

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Nina G. Stillman, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendants-appellants.

William J. Sneckenberg, William J. Sneckenberg & Assoc. Ltd., Chicago, Ill., for plaintiff-appellee.

Before WOOD and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

Allis-Chalmers and one of its supervisory employees, Lambert, appeal from a judgment imposing liability under civil rights law for their having failed to protect Hunter, a black employee at Allis-Chalmers' engine

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plant in Harvey, Illinois, from racial harassment by his white co-workers, and for having fired him when he filed a complaint about the harassment. The appeal raises a number of issues concerning the sufficiency of the evidence, the conduct of the trial, and the size of the judgment.

Hunter was hired in 1973 as a machinist and in 1978 became an engine tester. There were more than 60 testers, of whom only a small fraction (exactly how small is unclear) were black. Testers were paid on a piecework basis. They received points for each piece of work done, and 125 points entitled them to the base rate; for each additional point they got incentive pay. The testers had agreed among themselves not to exceed 140 points; they were afraid that if they did management would raise their base output quota, thus making them work harder for the same pay. Hunter was a "rate buster," or as it was called in another time and place, a Stakhanovite. He went as high as 190 points. This was greatly resented and other testers told him to stop. The evidence is conflicting as to whether he did; he testified that after being warned, he did not exceed 145 points except on a few occasions when his supervisors wanted greater production. In any event, the white testers harassed him continuously. They would place a glue-like substance on the lock of his tool box, which prevented him from opening it; they hid his tools; they sabotaged the engines he was supposed to test. Racial graffiti blossomed on the walls of the bathroom and on a company bulletin board, saying such things as, "the KKK is not dead, nigger," and "open season on coons." One graffito depicted Hunter having sex with his (male) foreman. Racially derogatory notes were left for Hunter and one of the other black workers to find in their working areas, such as, "Save this mess for the nigger on the second shift." A hangman's noose covered with a black oily substance was found attached to a black worker's testing equipment. Although Hunter complained repeatedly to his supervisors, there is evidence that they failed to take more than half-hearted measures to stop the harassment--evidence, indeed, that the general foreman of the testing unit, defendant Lambert, once called a black worker a nigger to his face, often referred to blacks as niggers behind their backs, and acknowledged that the white testers were racists.

After a visit to the plant by Hunter's lawyer in the first week of 1979, and especially after filing a complaint with the Illinois Fair Employment Practices Commission a month later, Hunter, who until then had had a good work record, began receiving disciplinary sanctions. They culminated in his discharge a few weeks later for having falsified test records--that is, for having claimed to have done work which he had not done. There were indeed discrepancies, but there was also evidence that mistakes in test records were common and that except in Hunter's case no tester had ever been disciplined unless he altered records after a supervisor had approved them.

Hunter brought this suit both under section 16 of the Civil Rights Act of 1870, now 42 U.S.C. Sec. 1981 ("All persons ... shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens"), which has been interpreted to forbid racial discrimination in employment, Johnson v. Railway Express Agency, 421 U.S. 454, 460, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975), and under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. Although there are significant differences between these statutes in coverage, procedure, and remedy, the defendants do not argue that there is any substantive difference relevant to this case. Compare Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir.1980); Setser v. Novack Investment Co., 638 F.2d 1137, 1146-47 (8th Cir.1981); Lincoln v. Board of Regents, 697 F.2d 928, 935 n. 6 (11th Cir.1983).

The section 1981 case was tried to a jury, the Title VII case simultaneously to the judge. The parties agreed to let the judge determine the remedy. The jury

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(composed of four whites and one black, the parties having consented under Fed.R.Civ.P. 48 to a jury of five persons) brought in a verdict for Hunter on the section 1981 charge. The judge remarked that she would have reached the same result on the Title VII charge. The pertinence of the observation is not entirely clear, since the jury's verdict would in any event bind the judge on the factual issues common to the two claims. Lincoln v. Board of Regents, supra, 697 F.2d at 934. The judge never entered judgment on the Title VII count, and if that count were still pending in the district court we would have to dismiss the appeal for want of a final judgment. 28 U.S.C. Sec. 1291. But since the judge gave Hunter under section 1981 all the relief he claimed under both statutes, probably his Title VII claim became moot and was abandoned; this is the most natural interpretation of the judge's statement that Hunter "has not sought a formal judgment on the Title VII claim." In any event we shall assume the Title VII claim was abandoned, though it would have been better if the district judge had formally dismissed the claim. Again we ask our district judges to avoid creating uncertainty about the finality of the judgments they enter. See Dimmitt & Owens Financial, Inc. v. United States, 787 F.2d 1186, 1189-90 (7th Cir.1986), where a similar loose end was left dangling.

Among the important differences between a Title VII and a section 1981 employment discrimination case (besides the right to jury trial in the latter) is that in a section 1981 case the plaintiff has a right to full common law damages, and to backpay without limit of time, compared to the two-year limit on backpay in Title VII, 42 U.S.C. Sec. 2000e-5(g). The judge awarded Hunter $25,000 for the indignity and stress inflicted by Allis-Chalmers' conduct and $25,000 in punitive damages, as well as $134,000 in backpay (including prejudgment interest) for the five years between the discharge and the trial, a period during which Hunter was almost continuously unemployed. Excluding attorney's fees, the judgment came to $184,000.

1. The first issue is whether the evidence that Hunter was harassed because of his race and then fired in retaliation for complaining about the harassment was sufficient to justify the jury's finding Allis-Chalmers guilty of employment discrimination. The perpetrators of the harassment were Hunter's fellow engine testers; and a company certainly is not liable for every racial slur by a nonsupervisory member of its work force. See, e.g., Erebia v. Chrysler Plastic Products Corp., 772 F.2d 1250, 1254 (6th Cir.1985); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir.1981). Not only is it hard to see how an isolated racial slur could be thought a significant enough event to count as employment discrimination; it is unclear what practical steps an employer could take to purge all racially offensive speech from the workplace. An employer "is not charged by law with discharging all Archie Bunkers in its employ." Howard v. National Cash Register Co., 388 F.Supp. 603, 606 (S.D.Ohio 1975). That would be an unrealistic burden.

But failure to take reasonable steps to prevent a barrage of racist acts, epithets, and threats can make an employer liable if management-level employees knew, or in the exercise of reasonable care should have known, about the campaign of harassment. See, e.g., Erebia v. Chrysler Plastic Products Corp., supra, 772 F.2d at 1253-59; Walker v. Ford Motor Co., 684 F.2d 1355, 1358-59 (11th Cir.1982); cf. Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977) (racial harassment in workplace as common law tort of outrage). This principle is sometimes described incorrectly as an application of respondeat superior. See, e.g., Moffett v. Gene B. Glick Co., 621 F.Supp. 244, 270-71 (N.D.Ind.1985). Racial harassment is an intentional wrong, and the doctrine of respondeat superior makes an employer liable only for those intentional wrongs of his employees that are committed in furtherance of the employment; the tortfeasing employee must think (however misguidedly)

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that he is doing the employer's business in committing the wrong. Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 817 (7th Cir.1985). It would be the rare case where racial harassment against a co-worker could be thought by the author of the harassment to help the employer's business.

But an employer is directly liable (that is, independently of respondeat superior) for those torts committed against one employee by another, whether or not committed in furtherance of the employer's business, that the employer could have prevented by reasonable care in hiring, supervising, or if necessary firing the tortfeasor. Lancaster v. Norfolk & Western Ry., supra, 773 F.2d at 818-19. Consistent with this...

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