6th Circuit avoids key legal issue, but still absolves union of harassment liability

Samuel Gompers, founder of the AFL, wrote that “[w]herever trade unions are most firmly organized, there are the rights of the people most respected.” But Gompers wasn’t quite right if Tanganeka Phillips’s claims are true; she alleges that one of the largest unions in North America discriminated against her on the basis of race.

When a judicial opinion starts out with a quote such as this, it’s usually not a good sign for the defendant, unless you happen to be the United Auto Workers, the defendant in Phillips v. UAW Int’l (6th Cir. 4/12/17) [pdf], which walked away from some pretty bad allegations of racial harassment.

Tanganeka Phillips, an employee at the MGM Grand Detroit casino and chairperson of UAW Local 7777, claimed that two employees of UAW International, Brian Johnson and Dave Kagels, created a racially hostile work environment towards her. Specifically, over the span of two years, Phillips alleged that she witnessed the following racist misconduct:

• Kagels listed three union representatives (all black) by name and said he would fire them all if he could.
• Johnson told Phillips “[w]e need to put a black on staff to calm it down, and was [Phillips] interested?”
• In addressing Dwight Braxton (another union member) in Phillips’s presence, Johnson said “oh, because you’re big and black. You’re her bodyguard, I’m supposed to be afraid of you.” 
• Johnson once said that the “problem with the Union was that there are too many blacks in the union.” 
• Johnson made frequent racial comments, and spoke in a condescending tone when dealing with black union members as compared to white members. 

The last straw for Phillips was when she witnessed Johnson separate member grievances into two piles, a “white” pile and a “black” pile, and stated his intention to withdraw those in the “black” pile.

The court declined to address the legal issue of whether Title VII covers hostile environment claims brought against a union by a member. The court noted that Congress wrote Title VII with different language in the relevant employer and union subsections,  and only in the employer subsection is there a specific prohibition on discrimination with respect to “compensation, terms, conditions, or privileges of employment” (the statutory underpinning of hostile environment claims).

Nevertheless, the court refused to reach that issue, concluding that regardless, Phillips’s claim falls legally short of constituting a hostile work environment.

These incidents, if true, are offensive and condemnable. But they are not actionable as a hostile work environment. … [T]he incidents were isolated and not pervasive or severe enough to alter the terms and conditions of Phillips’s employment. … [T]his court has established a relatively high bar for what amounts to actionable discriminatory conduct under a hostile work environment theory. The misconduct alleged here—a handful of offensive comments and an offensive meeting over a two-year period—does not clear that bar.

And … the court is probably right. A few incidents of minor to slightly less minor severity spread over a two-year period is not sufficiently severe and pervasive to constitute an actionable hostile working environment. However, just because a working environment (or labor union) is not unlawfully hostile does not mean that you should ignore it if it comes to your attention. Treat all harassment incidents the same (promptly and thoroughly investigate, consider preliminary remedial steps, communicate will all affected parties, and follow through with remedial action to reasonably cure the harassment) and your workplace will be a better place to work.