And the hits keep on coming! A federal jury in Florence, South Carolina just issued a verdict for $3 million against Associates Asset Recovery, LLC (a repo company) in a South Carolina racial harassment lawsuit. Emmanuel Ferguson and David Nauheim were the plaintiff’s attorneys, so congratulations to these two guys for their outstanding results for their client. [Read the Jury Verdict Form here]
What Was the Racial Harassment that the Plaintiff Was Subjected To?
I’ve seen many, many racial harassment cases over my career, but the facts in this one are WILD, y’all. The plaintiff, AnnSharee Webb-Harrison, is African American. The Defendant, Associates Asset Recovery (AAR), operates a multi-state repossession company that works for banks and other financial institutions. Tony Cooper (white) was the owner, and Michelle Rodgers (white) was a manager in Webb-Harrison’s office.
Webb-Harrison testified that Rodgers and other AAR employees referred to her as a “nigger” and a “black bitch,” and likewise labeled employees who associated with Webb-Harrison as “nigger lovers.” When Webb-Harrison complained about the racial harassment, management TOLD HER SHE COULD WEAR HEADPHONES IF SHE DIDN’T WANT TO HEAR SUCH LANGUAGE. I put that all in bold, because, good Lord.
Webb-Harrison also reported that she received a series of racist and threatening text messages from an anonymous source, which she believed to be her co-workers. The texts included references such as “slave,” “bitch,” and “nigger.”
In response to her complaints, the company began to transfer her between departments, reduced her duties, excluded her from training and hiring input, and subjected her to directives that others were not allowed to help her. Cooper told another employee not to let Webb-Harrison help with hiring because Webb-Harrison was a “dark color.” (Recall from a prior post how the U.S. Supreme Court held that the harm an employee suffers “need not be significant” or huge in order to show an “adverse employment action.” Read more: U.S. Supreme Court: Lateral Job Transfers Can Be Discriminatory]
Ultimately, Webb-Harrison resigned due to the harassment, as well as a final incident where she alleged owner Tony Cooper pinned her against the wall and spit in her face.
What Legal Claims Did Webb-Harrison Bring Against Defendant AAR?
Webb-Harrison filed a number of different claims for this harassment, but only her hostile work environment claim against AAR and the assault and battery claim against owner Tony Cooper moved forward to trial. The remaining claims were dismissed by the court before trial in a process called summary judgment. [If you’re interested in all the details, read the Magistrate Judge’s Report and Recommendation and the Order on Summary Judgment]
So what does an employee have to prove in order to succeed on a hostile work environment claim? Well, the employee has to show to a jury that the conduct she experienced was:
(1) unwelcome;
(2) based on a protected characteristic, like race in this case;
(3) sufficiently severe or pervasive (one or the other, not both) to alter the conditions of her employment and to create an abusive work environment; and
(4) imputable to her employer (i.e., the employer must be responsible for the harassment in some way).
For a black employee, being called the n-word by another employee will meet the requirements that the conduct be unwelcome and based on race. A single use of the n-word, especially if by the black employee’s manager, can be sufficiently severe to create a hostile work environment. Repeated uses of the n-word would meet the “pervasive requirement.”
Imputability to the company is triggered when the racial slur is used by the black employee’s manager or company owner directly. Or it could be triggered if a co-worker is using the n-word repeatedly, the company knows about it, and the company does nothing to stop the harassment.
Why Federal Damage Caps Do Not Apply to the $3 Million Verdict against AAR
The jury declined to find Tony Cooper liable for assault and battery, so no damages were awarded for that claim.
But the jury resoundingly found in favor of Webb-Harrison on the racially hostile work environment claim. The jury found that Webb-Harrison had met each element of the claim and that AAR had failed to take action to stop the harassment. The jury awarded Webb-Harrison $2,000,000 in compensatory damages and $1,000,000 in punitive damages. Compensatory damages covers pain, suffering, and emotional distress. Punitive damages are for when the jury gets really upset at the treatment the plaintiff has experienced and finds that the company acted with malice or reckless indifference to the employee’s right to be free from racial harassment in the workplace.
Here’s the big kicker, though: because the race claim was brought under a federal law called 42 U.S.C. Section 1981, THERE ARE NO CAPS ON DAMAGES. If you recall from my earlier posts about the $5.1 Million verdict against BMW for national origin discrimination, that verdict was reduced to $300,000 because of the caps on damages in Title VII of the Civil Rights Act. [Read more: Greenville Jury Issues a $5.1 Million Verdict Against BMW for National Origin Discrimination] Section 1981 has not such caps, so the Defendant has to pay the whole amount owed. Additionally, Section 1981 allows for personal liability too, so the owner can’t hide behind a corporate shield.
Further, Mr. Ferguson and Mr. Nauheim will also be able to petition the court for attorney’s fees, which could easily be another hundreds of thousands of dollars more.
What Happens Next In this Racial Harassment Lawsuit?
The defendants still have the right to file post trial motions. They will inevitably seek a new trial, which is likely to be denied. They’ll also seek to have the damages award be reduced by the judge, claiming it is excessive. So lots more to fight about. An appeal likely follows.
Of course, the parties could settle the case at any point too. If that happens, we won’t know the details or final terms, but typically it would be a discounted amount of the verdict and final judgment.
The big takeaway for me is that this is just one more recent victory for employees, coming on the heels of a $5.1 million verdict against BMW, a $300,000 verdict against Spartanburg Community College for FMLA interference, and a $300,000 verdict against Prisma Health for abuse of process against an employee.
Juries are the conscience of the community. These recent verdicts show that our communities are standing up for the rights of employees to live and work in a job without being subjected to racial harassment, national origin discrimination, termination for needing FMLA leave, or harassment for having to pump breast milk.
If you’ve experienced discrimination or harassment in the workplace, feel free to call my office at (864) 278-5389 or reach out via my Contact Us form.
