In Jones v. UPS Group Freight, decided by the Eleventh Circuit earlier this month, the court reversed a grant of summary judgment, allowing the plaintiff’s racial harassment claim to proceed to a jury trial. In Jones, an African American truck driver alleged he was harassed based on his race when co-workers left banana peels in and near his truck and wore shirts with Confederate flags. These acts were severe and pervasive enough — the linchpin of any hostile work environment claim — to defeat summary judgment. The court noted the significance of the bananas:
“[A] discriminator may conjure up images of monkeys by using items associated with monkeys, such as their stereotypical food of choice, the banana. When a race claim is premised upon the presence of bananas, which requires us to infer that the person who placed the bananas was evoking a racial slur, we must, of course, be cognizant of the surrounding circumstances. People commonly eat and discard bananas, in the workplace and elsewhere, without any racial motivation . . . Unfortunately, some people do use bananas to communicate racial slurs.”
As an employer, you don’t want to be in the position of arguing the harassment was not severe or pervasive enough. It’s a gray area to be sure and thus very hard to predict which way a court will go. Train all employees to be respectful and to avoid race-related (or any other protected category) comments or conduct. And if you catch wind of it, take action.