by Michael H. Boldt

A decision of a federal district court in Chicago in March of 2002 reinforces the notion that preventing discrimination and harassment in employment is everybody's business. In the case of EEOC v. Pipefitters Association Local 597 (Northern District of Illinois, No. 98 C 1601, March 28, 2002), a judge ordered Local 597 to pay a total of $155,000 to compensate eight victims of on-the-job racial harassment, and ordered Local 597 to take other specific remedial actions.

The Decision
The Local 597 decision is another chapter in long-running litigation protesting egregious harassment of African-American workers and women that occurred on a waste-to-energy incinerator project in Robbins, Illinois in the mid 1990's. In 1998, the Equal Employment Opportunity Commission (EEOC) filed suit against Local 597 and Foster Wheeler Constructors, Inc., the general contractor. The EEOC's lawsuit accused both the union and the contractor of ignoring, and in essence, condoning egregious harassment on the job site that included racist jokes, hangman's nooses, swastikas, and racist and sexually explicit graffiti written primarily on the walls of the portable toilets that were located on the construction site.

In January of 2000, Foster Wheeler agreed to settle the case without going to trial. Foster Wheeler agreed to pay over a million dollars in damages to approximately 100 plaintiffs who had complained of racial and sexual harassment. The union, however, refused to settle the matter and proceeded to trial.
Union witnesses apparently testified that the graffiti on the walls of the portable toilets was not out of the ordinary or racially insensitive. The union also argued that a certain amount of racist conversation and graffiti occurs on all construction sites and cannot be controlled - essentially, a variation of the old "boys will be boys" argument that used to be raised routinely as a defense in connection with allegations of sexual harassment.

The union's testimony and arguments did not convince the judge. The judge wrote that the graffiti was ". . . vile, discussing, and insulting. Only a visitor from another planet would fail to understand the ugliness of what was written and drawn on those walls."

The judge concluded that the union had been aware of the environment on the site, had ignored it, and had essentially fostered an atmosphere in which the racial harassment could continue. Accordingly, the judge found the union liable for such harassment in violation of the union's obligations under Title VII of the Civil Rights Act. In addition to awarding money to the plaintiffs, the judge also ordered the union to develop a written policy prohibiting racial harassment and a procedure for collecting and investigating complaints of harassment. The union was ordered to develop a training program for all union members, not just the officers of the union, and to mail information concerning the result of the case to all the union members, and to all new members in the next 3 years. The union is also required to file periodic reports with the EEOC for the next 3 years concerning its compliance with the judge's order. One of the plaintiffs was awarded attorneys fees and the EEOC was awarded its costs.

Discussion
The Local 597 case was decided under Title VII which imposes a duty upon unions as well as employers to avoid engaging in discrimination on the basis of race, sex, national origin, color and creed. Unions are also prohibited from engaging in discrimination on the basis of disability and age under different federal statutes. Unions are much less frequently defendants in employment discrimination matters than are employers and the Local 597 case is an indication that some unions may not understand that they have the same obligations to avoid employment discrimination as do employers.

In addition to Title VII and the other anti-discrimination statutes, the union's obligation to represent all employees in a bargaining unit, which derives from the union's status as the "exclusive" representative of all employees in the bargaining unit, also imposes an obligation to avoid discrimination and to take steps to prevent it. As long ago as 1944, in the case of Steele v. Louisville & National Railway, 323 US 192, the Supreme Court of the United States ruled that unions may not sacrifice the interests of African-American members at the expense of white members because unions have the duty, as the exclusive representative of employees, to represent the interests of all members equally.

In addition to their obligations under anti-discrimination statutes, unions frequently receive requests from construction employers to help the employers meet affirmative action requirements. In the construction industry on federally-funded and federally-assisted construction projects, employers are required, pursuant to the requirements of Executive Order 11246, to engage in outreach efforts to attempt to hire minorities and women. The Department of Labor's regulations implementing the executive order require employers that are in collective bargaining relationships with unions to notify the unions of the employer's affirmative action obligations. Accordingly, unions who want to see their union signatory contractors meet affirmative action goals need to accept, for referral and membership, minorities and women who can be referred to requesting employers under the unions' hiring hall procedures.

Conclusion
The Local 597 case involved several years of litigation, expenditure of significant amounts of union funds on legal fees, and ultimately a sizable damage award to the plaintiffs. Part of the award was a punitive damage award intended to punish the union for its conduct, principally indifference and condonation of harassment by some of its members against others.

The need for such expensive lessons is unfortunate. Hopefully, the news of this decision will cause other unions to re-evaluate their procedures for ensuring an even-handed nondiscriminatory approach to representation of employees and reduce the likelihood of future cases of this sort occurring. Both employers and unions are obligated to prevent employment discrimination and harassment: it is everybody's business.