Union liability for workplace discrimination rejected by appeals court

By G. Phillip Shuler

A federal court of appeal recently refused to find that a union was liable for race discrimination claims brought by African American pipefitters and union members. The case, EEOC v. Pipefitters Ass'n Local Union 597, began in an Illinois federal district court, and was ultimately decided by the Seventh Circuit Court of Appeal.

Though the 2-1 decision authored by Judge Posner would not be binding upon the Fifth Circuit Court of Appeal, which exercises jurisdiction in Louisiana, it does suggest a model for how other courts might address the issue of whether a union may be held liable for a hostile working environment.

Eight African American pipefitters and union members sued their employer, Foster Wheeler Constructors, the prime contractor on a project to constrict a recycling plant in Illinois, and a local of the pipefitters union that supplied workers to Foster Wheeler, alleging that the employer and the union both violated Title VII of the Civil Rights Act of 1964 by permitting a racially hostile environment to exist on the job site and for failing to respond to charges of discrimination.

The employer, Foster Wheeler, settled the lawsuit and was dismissed as a defendant, and the EEOC, on behalf of the claimants, proceeded to trial against the union on the discrimination claims. The district judge decided in favor of the eight workers, and awarded both compensatory and punitive damages to them. The union appealed the judge's decision to the Seventh Circuit.

The appeals court reversed the district court's judgment in favor of the workers, finding instead that the union could not, under these facts, be liable under federal discrimination law for the alleged harassment and discrimination.

Judge Posner, writing for the majority, found that "[a]n affirmative duty of the union to investigate and rectify discrimination by the employer derives no support from the statutory language … and fills no gap in the remedial scheme."

Judge Posner further concluded that in this instance, the union's power over the alleged harassers was much more limited than was the employer's. For instance, the union could not hire or fire the harassers, nor could it meaningfully discipline them. In addition, the court found that imposing such a duty to ferret out workplace harassers among their members would create an "awkwardness of asking the union to take sides in a dispute between two employees both of whom it has a statutory duty to represent fairly in any disciplinary proceeding by the employer." Thus, the court found, the union did not have an affirmative duty to prevent racial harassment or other forms of unlawful discrimination in the workplace.

Of course, Title VII contains an express provision which prohibits a union from excluding or expelling from its membership, or otherwise discriminating against, any individual because of his race, color, or other protected class. However, the court found that this provision - Section 703(c) of Title VII - did not establish an affirmative duty on behalf of the union to prevent and correct workplace discrimination. "The company, not the union, controls the workplace …" said the Court. "The union is not the company, but the workers' agent in dealing with the company. If it [the union] discriminates in the performance of its agency function, it violates title VII, but not otherwise."

The Pipefitters Ass'n Local Union 597 case should be a reminder to employers of their fundamental responsibilities under federal law. Whether the court correctly absolved the union of any wrongdoing under Title VII or not, or whether this same result would obtain in the Fifth Circuit, are matters open for debate.

What is clear, however, is that federal courts that are charged with construing Title VII will not hesitate to look to the employer when a complaint is made. That means that employers must be vigilant in preventing and promptly correcting any workplace harassment or discrimination, and cannot rely upon someone else - a union steward, another employee - to remedy workplace harassment.

Ultimately, it is the employer who is called upon to answer for harassment or discrimination in the workplace, whether rightly or wrongly. If you are an employer, do not wait to address any problems that arise. Act promptly; investigate all claims; and take remedial action where it is warranted.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.