“Awareness” and Its Ambiguous Meaning in the 6th Circuit

Last week on February 24th, the 6th Circuit affirmed an Ohio lower court’s holding in only considering the racially charged incidents which were directly experienced or known about, and not aggregating all of the claims by a group of black employees in a discrimination suit.

In 2005, SuperValu and several of its warehouse supervisory employees were sued by eleven employees who worked in its distribution center in Ohio.  These employees claimed a hostile work environment, as they asserted white workers were treated with deference, while other employees worked in an environment “rife with racist comments, graffiti and other prejudicial elements, including the hanging of an effigy of a black employee.”  Though this may seem to be egregious facts providing “sufficient [evidence] to demonstrate a hostile workplace environment,” as U.S. Circuit Judge Jane Branstetter Stranch voiced in her dissent, the 6th Circuit ruled each plaintiff failed to show they were each aware of the harassment claimed by the others, thus preventing the use of a “totality-of-the-circumstances” test.

The 6th Circuit stated that an individual must only show s/he knows about the discrimination, in order for a consideration of the totality of the circumstances. “A plaintiff does not need to be the target of or a witness to the harassment.”  Seemingly suggesting this is a low burden to meet, this Court still found these employees did not satisfy this requirement.

In Judge Stranch’s dissent, she stated this ruling “begs credulity to suggest that the plaintiffs were not well aware of each other’s problems at work,” when in fact “those plaintiffs indisputably worked together, shared their work environment concerns with one another, and then joined together to file one lawsuit with the same claims and the same attorney.”

It seems anyone in the situation Judge Stranch described above would unquestionably make one “aware” of the other’s discrimination and thus satisfy the level of awareness in order to invoke a totality of the circumstances test.  Apparently though, it does not.  It makes one wonder then, what does “know[ing] about it” honestly imply?

Review a Law360 article about this decision here.

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