An employer may be held liable for a hostile work environment caused by an unknown actor when the employer fails to act on a complaint. In Pryor v. United Airlines, the plaintiff, an African-American employee of United Airlines, received anonymous racist death threats at work and complained to her supervisor, who told her he was sorry and there was nothing he could do because there was no security camera covering the secured area where the racist death threat was delivered in the workers mailbox.

Although the complaint was  moved up the chain of command, the supervisors failed to follow the company's protocol, which required that the Employee Service Center be contacted whenever a supervisor or manager was aware of an incident or complaint of harassment or discrimination. Although a manager did contact corporate security, security conducted no interviews and did not preserve any physical evidence or hard copy documents concerning the investigation. Previously, racist materials had been posted in a break room and had been discarded without investigation. Although corporate security closed its "investigation", nobody informed Ms. Pryor. 

Frustrated by her employer's inaction, Pryor contacted the Employee Service Center herself, and the matter was referred to a human resources manager who made some phone calls to gather information. United Airlines never reported the matter to police "despite the occurrence of a possible hate crime, and a crime that involved a threat of violence at a major airport". Pryor contacted the police herself, and their efforts at investigation were met with resistance from the company. 

Months later, Ms. Pryor received a nearly identical racist threat in her mailbox, and when she reported it to her immediate supervisor, was largely ignored. In the same time period of this second threat, the same threat was received by four other senior African-American flight attendants in their mailboxes. After a failed investigation that involved a temporary security camera and some cooperation with local police, Ms. Pryor relocated from Washington DC to Houston, and received no further threats. She then filed a complaint with the Equal Opportunity Commission, alleging that the company's failure to adequately investigate the death threats (and also some rumors that African-American flight attendants were moonlighting as prostitutes in Kuwait between flights) constituted unlawful discrimination. Ms. Pryor received a right to sue letter and filed a lawsuit, alleging that United engaged in a systemic pattern and practice of unlawful racial discrimination through its failure to investigate her complaints and that the company created hostile work environment. 

 United's motion for summary judgment was granted by the district court, ruling that although the racial notes were sufficient to create a hostile work environment, the conduct could not be imputed to the company. Ms. Pryor appealed to the 4th Circuit. 

As many people know, summary judgment is only appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. (They win the case.) To survive the airline's motion for summary judgment, Pryor had to show that the conduct she alleged was: To survive summary judgment, Pryor must show that a reasonable jury could find that the conduct she alleges was (1) unwelcome; (2) based on her race; (3) sufficiently severe or pervasive to alter the conditions of her employment and to create an abusive work environment; and (4) imputable to her employer. Only issues (3) and (4) were disputed. 

Acknowledging that the severity of unwelcome conduct is "not...mathematically precise" test, the court did note that an isolated incident can meet the requirement if it is extremely serious. The district court, which had granted the airline's motion for summary judgment dismissal of Ms. Pryor's complaint, found that factor three was satisfied with respect to the two racist death threats. Agreeing, and citing four factors, including the use of language that is "anathema" to African-Americans, the 4th Circuit agreed, "a reasonable jury could properly construe the notes as racially-tinged death threats so severe that it does not matter that they were not pervasive." 

The Court found that the question of whether the behavior could be imputed to United Airlines to be a much closer one. The ruling cited 4th Circuit precedent that

An employer may be liable for hostile work environments created by co-workers and third parties “if it knew or should have known about the harassment and failed to take effective action to stop it . . . [by] respond[ing] with remedial action reasonably calculated to end the harassment.”

And also that "an employer is not subject to a lesser standard simply because an anonymous actor is responsible for the offensive conduct." Ms. Pryor admitted that the airline's response to the second racist death threat was sufficient, thus the only question on appeal was "whether the airline's actions in response to the first threat were prompt and reasonably calculated to end the harassment." The Court noted that (of course) the reasonableness of the responsive action was directly related to the seriousness of the incident, and went on to describe the conduct at issue as

"some of the most serious imaginable in the workplace- an unmistakable threat of deadly violence against an individual based on her race, occurring in the particularly sensitive space of an airport."

The Court vacated the summary judgment ruling that dismissed Ms. Pryor's case, ultimately ruling that given the severity of the threat a reasonable jury could find the airline's response was neither prompt nor reasonably calculated to end the harassment, and mentioned several actions the company could have promptly taken that would have been more effective at ending the problem. The court also rejected the district court's reasoning that the conduct should not be imputed to the airline because there was no evidence the perpetrator would have been caught, and clarified that the standard is whether the employer took steps "reasonably calculated" to end the harassment. 

This is a great win for Ms. Pryor, and for workers in the 4th Circuit. It remains to be seen whether United will seek and be granted a Supreme Court review, and whether the case will settle or Ms. Pryor will prevail at trial, but the ruling is important insofar as it clarifies the standard for evaluating an employer's duties in responding to an employee's complaint of harassment creating a hostile work environment. 

The North Carolina employment attorneys at Edelstein & Payne have decades of experience litigating harassment claims for workers in federal court, and are available for consultation or representation.