Equal Employment Opportunity Commission v. Xerxes Corp.

WILKINSON, Circuit Judge,

concurring:

The undisguised ugliness of the incidents alleged here stands as a rebuke to complacency and a reminder that the task of racial reconciliation in our country remains incomplete. When judges speak of impermissible alterations of the terms and conditions of employment, what we mean is that no one should endure under law displays of racial bigotry at work.

The court is right to recognize that the company for the most part did not sit on its hands. As the district court has documented, Xerxes took the reports of rank prejudice in its midst quite seriously. I can hardly fault the able judge for believing that taken as a whole, the company’s response was reasonably calculated to end the harassment. See J.A. 847 (“The record ... reveals that whenever Xerxes learned of harassment, it acted quickly and reasonably effectively to end it.”).

*678It is understandable, in one sense, for the EEOC to believe that the company should have done more — that, as the agency puts it, “Xerxes knew about the racial harassment of all three class members but failed to take prompt or effective remedial action.” Appellant’s Br. at 31. Therein lies peril. To push employers to immediate and draconian actions is to dispense with any semblance of due process — to require disciplining the accused upon mere accusation. It is true the defendant here is not a state actor, but no entity — public or private — should be denied the leeway to sort out right from wrong.

There is a danger also, if the law requires too heavy an employer fist, that we stiffen interpersonal relationships; punish those inadvertent insensitivities that can arise even among persons of good will; and discourage the formation of friendships free of boundaries — the sole felicitous path upon which a decent people may proceed.

These hostile environment cases often defy hasty judgment. I write simply to commend the court for its good sense and balance — affirming in substantial part, but sending one claim back for a closer, further look. I am pleased to concur in its opinion. For every sad window such as this upon our daily lives, there is a hopeful one — unreported, unlitigated, but in its own way, a harbinger of happier times to come.