V. RACIAL HARASSMENT:
A. Proper Order and Allocation of Proof Under the Hostile Environment
Theory:
37. "It is questionable whether the traditional burden-shifting analysis is appropriate or necessary in hostile work environment cases where the alleged discrimination does not involve deprivation of a tangible job benefit." Lynch v. City of Des Moines, 454 N.W.2d 827, 834 n.6 (Iowa 1990)(citing Henson v. City of Dundee, 682 F.2d at 905 n.11 and Katz v. Dole, 709 F.2d at 255-56)). This is so because the burden shifting analysis, utilized in disparate treatment cases relying primarily on circumstantial evidence as the means of proof, "serves to 'progressively sharpen the inquiry into the elusive factual question of intentional discrimination,' . . . in . . . case[s] where prohibited criteria and legitimate job related criteria often blend in the employment decision." Henson v. City of Dundee, 682 F.2d at 905 n.11. In cases of racial harassment involving the repeated use of racist remarks or epithets, or physical harassment based on race, or other obviously race based conduct, the factual question of intentional discrimination is not at all elusive. See Henson v. City of Dundee, 682 F.2d at 905 n.11 (sexual harassment creating offensive environment does not present elusive factual question of intentional discrimination). Therefore, the Commission, in its adjudicative capacity, has not used a burden shifting order and allocation of proof in harassment cases. Rather, the Commission, as the party with the burden of proof, Iowa Code S 216.15(7), is required to prove, by a preponderance of the evidence, all of the elements of a racial harassment case. E.g. Dorothy A. Abbas, 12 Iowa Civil Rights Commission Case Reports 1, 22 (1994)(retaliatory harassment); Cristen Harms, 11 Iowa Civil Rights Commission Case Reports, 89, 124 (1992)(sexual harassment); Royd Jackman, 11 Iowa Civil Rights Commission Case Reports 70, 79 (1991)(racial harassment).
B. Elements of the Racial Harassment Case:
38. The Commission may establish a valid claim of racial harassment by proving the following elements:
1) The Complainant is a member of a protected class [i.e. he is Black];
2) He was subjected to unwelcome racial harassment;
3) The harassment was based upon his protected class status [i.e. his race];.
4) The harassment affected a term, condition, or privilege of employment [e.g. his working environment], and;
5) The employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.
See Greenland v. Fairtron Corp., 500 N.W.2d 36, 38 (Iowa 1993)(requirements for sex harassment case); Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632 (Iowa 1990) (religious harassment); Lynch v. City of Des Moines, 454 N.W.2d 827, 833, 834 (Iowa 1990)(requirements for sexual harassment case); Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 378 (Iowa 1986)(racial harassment); Edmunds v. Mercy Hospital, 503 N.W.2d 877, 879 (Iowa Ct. App.1993)(sex harassment); Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982)(sex harassment). Proof of first four elements with respect to an individual who participates in harassment by coworkers, such as Respondent Goken, is enough to establish liability for the harasser as these elements define the duty violated by the individual harasser, i.e. the duty as a "person" to refrain from "otherwise discriminat[ing] in employment," Iowa Code S 216.6(1)(a), by committing acts of racial harassment. See Conclusions of Law Nos. 22-30. All four elements were proven against Goken. See Finding of Fact No. 46A. All five elements must be proven against an employer, such as Respondents Monfort, who is charged with failure to remedy racial harassment committed by coworkers. See e.g. Lynch v. City of Des Moines, 454 N.W.2d 827, 833, 834 (Iowa 1990)(requirements for sexual harassment case); Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 378 (Iowa 1986)(racial harassment). The fifth element was not proven against Respondents Monfort. See Findings of Fact Nos. 48, 67A.
C. Protected Class Status of Complainant Tillman:
39. It is established in the record that Complainant Tillman is Black and is protected against discrimination in employment on the basis of race. Iowa Code S 216.6. See Finding of Fact No. 24.
D. Complainant Tillman Was Subjected to Unwelcome Racial Harassment:
40. "The threshold for determining that [racial] conduct is unwelcome is whether it was uninvited and offensive." Cf. Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 962 (8th Cir. 1993)(unwelcome sexual harassment). The racial conduct "must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded it as undesirable or offensive." Cf. Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982), quoted in Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990)(unwelcome sexual harassment). The unwelcome nature of the racial conduct directed toward Complainant Tillman is established in the record when viewed as a whole. He found the racial conduct of Respondent Goken and other employees to be offensive. He complained about some of the initial harassment to Respondents Monfort. See Findings of Fact No. 25-40. Although the record must be viewed as a whole, such complaints are often persuasive evidence that the conduct was unwelcome. Fair Employment Practices (BNA) 405:6681, 405:6685 "EEOC: Policy Guidance on Sexual Harassment" (March 19, 1990). See Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990).
E. The Harassment Was Based on Complainant Tillman's Protected
Class Status, I.e. His Race:
41. It is established in the record that the harassment sustained by Complainant Tillman was directed toward him because he is Black. See Finding of Fact No. 24. This element may be met by proof of the use of racial epithets. See e.g. Schlei, Employment Discrimination Law: 1987-1989 Supplement 35 (1991); Schlei, Employment Discrimination Law: Five Year Cumulative Supplement 88-90 (1989). In this case, it has been established that the harassment was based on Complainant Tillman's race because the harassment involves both repeated racial epithets and an instance of physical action directed against Tillman accompanied by verbal racial harassment. See Finding of Fact Nos. 25-40. The presence of "insulting comments aimed at [the complainant] [which] were particularly reserved for [Blacks}," also justifies the conclusion that the harassment was due to the Complainant's race. Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990)(insulting comments which were particularly reserved for women demonstrates harassment due to sex).
F. The Harassment Affected A Term or Condition of Complainant
Tillman's Employment, I.e. His Working Environment:
1. Loss of Tangible Job Benefits Is Not Required To Establish
That Harassment Has Affected A Term, Condition or Privilege of
Employment:
42. Although racial harassment of Complainant Tillman did not directly result in "the loss of a tangible job benefit," such a loss need not be proved in order to meet the requirement that a term, condition or privilege of employment was affected by the harassment. Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990). His working environment is a condition of his employment. Thus, the creation of a hostile or abusive working environment is enough to show that a condition of employment has been affected. See id.; Royd Jackman, 11 Iowa Civil Rights Commission Case Reports 70, 79 (1991).
2. The Standard for Determining When Harassment In the Workplace
Violates the Iowa Civil Rights Act Focuses on the Pervasiveness
and Severity of the Harassing Conduct:
43. In determining whether a hostile or abusive working environment has been created, the Supreme Court of Iowa has focused on the pervasiveness and severity of the harassing conduct. "A hostile working environment is caused by discriminatory conduct or harassment which has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632 (Iowa 1990). "Where . . . harassment in the workplace is so pervasive and severe that it creates a hostile or abusive work environment, so that the [complainant] must endure an unreasonably offensive environment or quit working, the . . . harassment affects a condition of employment." Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990)(sex harassment case).
44. The Supreme Court of the United States has provided a standard which also focuses on the pervasiveness and severity of the harassment in determining whether there is an illegal hostile working environment: "When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' . . . that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' . . . Title VII is violated. " Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 370 (1993).
3. The Totality of the Circumstances Must Be Examined to Determine
Whether a Hostile or Abusive Working Environment Exists:
45. Under both the Iowa Civil Rights Act and Title VII of the Civil Rights Act of 1964, the totality of the circumstances in the case must be examined to determine whether a racially hostile or abusive working environment exists. Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 633-34 (Iowa 1990); Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 371 (1993).
46.
The existence of a hostile or abusive working environment must be established by the totality of the circumstances. . . . Whether . . . use of . . . slurs is continuous, severe and pervasive enough to rise to a violation of the Iowa Civil Rights Act is a question of fact. . . .
It is well established that the "mere utterance of a . . . ethnic or racial epithet which engenders offensive feelings in an employee" does not affect the terms, conditions and privileges of employment to a significant degree. . . . Discriminatory comments that are "merely part of casual conversation, are accidental or are sporadic do not trigger . . . sanctions." . . .
On the other hand, the determination of whether defendant's conduct is sufficiently severe and pervasive to constitute [sexual] harassment does not turn solely on the number of incidents alleged by plaintiff. . . . The totality of the circumstances requires the factfinder to examine the severity, as well as the number, of the incidents of harassment. . . . In some situations the severity of the offensive conduct may lessen the need for sustained exposure. The prima facie showing in a hostile environment case is likely to consist of evidence of many or very few acts or statements by the defendant which, taken together, constitute harassment.
Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 633-34 (Iowa 1990)(citations omitted)(emphasis added).
47 In the Vaughn case, the Court considered a situation where the plaintiff and other employees were subjected to generally abusive remarks by one Mueller, a supervisor, on a daily basis. Vaughn, 459 N.W.2d at 630, 631, 633. In addition, plaintiff was subjected to anti-Catholic remarks by his supervisor on three days out of a three month period. Id. at 631. On a fourth day, he was also initially refused time off to go to church. Id. The refusal was rescinded four hours later. Id. The Court held that this set of facts presented "a close question" on the issue of "whether Mueller's behavior was sufficiently severe and pervasive to alter a condition of his employment." Id. at 634. The court did not resolve the question, but based its decision for the employer on the employer's prompt and appropriate response to the harassment. Id. at 634-35. The harassment of the Complainant in this case involved derogatory racial remarks which were far more frequent than was the case in Vaughn. See Finding of Fact No. 43.
48.
But we can say that whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 371 (1993)(Title VII case)(emphasis added).
49. All of the above factors were considered in reaching the conclusion that Complainant Tillman's working environment was hostile or abusive. See Findings of Fact Nos. 43-46.. With respect to the factor of interference with work performance, it is sufficient to prove that a reasonable person subjected to such harassment would find, "as the plaintiff did, that the harassment so altered work conditions as to 'ma[k]e it more difficult to do the job.'" Harris v. Forklift Systems, Inc., 114 S.Ct. at 372 (Ginsburg, J., concurring)(quoting Davis v. Monsanto Chemical Co., 858 F.2d 345, 349 (6th Cir. 1988)). It is not necessary to show that the Complainant's "'tangible productivity has declined as a result of the harassment.'" Id. (Ginsburg, J. concurring)(quoting Davis at 349)).
50. Another factor showing that the racial harassment was sufficiently severe and pervasive to affect the terms and conditions of Complainant Tillman's employment is that the harassment was inflicted by more than one coworker. Lindemann & Kadue, Sexual Harassment in Employment Law 178-79 (1992). See Finding of Fact No. 25.
4. Physical Harassment May Often Have A More Severe Impact
Than Verbal Harassment:
51. Physical racial harassment will often have a greater impact than verbal harassment. Royd Jackman, 11 Iowa Civil Rights Commission Case Reports 70, 80 (1991)(Black employee physically grabbed by harassing coworker). The Equal Employment Opportunity Commission has recognized that, while a hostile working environment claim usually requires a pattern of offensive conduct, "the more severe the harassment, the less need to show a repetitive series of incidents. This is particularly true when the harassment is physical." Fair Employment Practices (BNA) 405:6681, 405:6690-91 "EEOC: Policy Guidance on Sexual Harassment" (March 19, 1990)(emphasis added). See also Carrero v. New York City Housing Authority, 890 F.2d 569, 578 (2nd Cir. 1989). The Complainant was subjected to one incident of physical harassment. See Findings of Facts Nos. 26.
5. Pervasive Verbal Harassment Alone May Be Sufficient to Establish
a Hostile or Abusive Working Environment:
52. Verbal harassment can also create a hostile and abusive working environment: Given the nature and extent of the language repeatedly directed at Complainant Tillman at Respondents Monfort, the verbal harassment alone would be sufficient to establish a hostile and abusive work environment. See e.g. Royd Jackman, 11 Iowa Civil Rights Commission Case Reports 70, 80 (1991); Frank Robinson, 11 Iowa Civil Rights Commission Case Reports 55, 57 (1991); Schlei, Employment Discrimination Law: 1987-1989 Supplement 35 (1991); Schlei, Employment Discrimination Law: Five Year Cumulative Supplement 88-90 (1989). See Findings of Fact Nos. 43-46.
6. The Effect of Combined Verbal and Physical Racial Harassment
Will Intensify the Hostility of the Environment and Increase the
Likelihood That The Environment Will Be Found to Be Abusive:
53. "When the victim is the target of both verbal and non-intimate physical conduct, the hostility of the environment is exacerbated and a violation is more likely to be found." Fair Employment Practices (BNA) 405:6681, 405:6691 "EEOC: Policy Guidance on Sexual Harassment" (March 19, 1990) (sex harassment guidance). The combined verbal and physical harassment sustained by Complainant Tillman is more than sufficient to establish the existence of a hostile and abusive working environment. See Findings of Fact Nos. 44, 46.
7. The Commission Has Proven That The Working Environment At
Respondents Monfort Be Shown to Have Been Considered Hostile and
Abusive When Viewed From Both the Perspectives of the Complainant
and of a Similarly Situated Reasonable Person:
54. The Complainant's working environment was found to be considered by him to be hostile or abusive. It was also found that such an environment would be considered hostile and abusive by any reasonable person. See Finding of Fact No. 40. Thus, the evidence in this case met both the subjective requirement that the Complainant personally find the conduct to be hostile or abusive, and the objective requirement that a similarly situated reasonable person would find such conduct be hostile or abusive. See Harris v. Forklift Systems, Inc,, 510 U.S. 17, 114 S. Ct. 367, 370, 371 (1993).
G. The Commission Has Not Proven That Respondents Monfort Failed
to Take Prompt and Appropriate Remedial Action For Those Actions
of Racial Harassment of Which It Knew or Should Have Known:
55. The Commission has failed to prove that Respondents Monfort knew or should have known of the racial harassment sustained by the Complainant beyond that initially reported by him with respect to Mr. Mentel and that ultimately reported concerning Bret Goken after the cafeteria incident. See Findings of Fact Nos. 47-48. The Commission has not proven that Respondents Monfort failed to take prompt and appropriate remedial action concerning that harassment of which it was aware. See Findings of Fact Nos. 67A-84. Thus, the Commission has failed to establish the last element necessary to establish Monfort's liability for hostile environment racial harassment committed by coworkers. See Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632, 634 (Iowa 1990)(harassment by supervisor); Lynch v. City of Des Moines, 454 N.W.2d 827, 833, 835 (Iowa 1990)(harassment by coworkers).
1. Actual or Constructive Knowledge of Harassment:
56. With the exception of the reported harassment, Respondents Monfort did not have actual knowledge of the harassment. "Where supervisors have witnessed co-worker harassment firsthand, courts have held that the employer had actual knowledge." Lindemann & Kadue, Sexual Harassment in Employment Law 242 (1992). Actual knowledge is also shown when either lower level first line supervisors or higher level management receive complaints about racial harassment. Id. This is true even when the first level supervisor did not report the harassment to higher levels of management. Id. This knowledge was shown only with respect to the harassment reported to Monfort by Complainant Tillman. See Findings of Facts Nos. 47-48
57. Constructive knowledge of harassment is imputed to the employer when the acts of harassment are "so numerous that the employer would have had to know of them." Id. at 243. An employer will be charged with constructive knowledge of the harassment "if management-level employees . . . in the exercise of reasonable care should have known about the campaign of harassment." Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 41 Fair Empl. Prac. Cas. 721, 724 (7th Cir. 1986). "[An employer] is unlikely to know or have reason to know of casual, isolated, and infrequent slurs; it is only when they are so egregious, numerous, and concentrated as to add up to a campaign of harassment that the employer will be culpable for failing to discover what is going on and to take remedial steps." Id. These authorities tend to emphasize the number of incidents required to show constructive knowledge while a relatively few incidents of sufficiently severe harassment will meet the combined standard of pervasiveness and severity needed to show a hostile working environment. See Conclusions of Law Nos. 45-47.
58. Under the facts of this case, it cannot be said that the employer would have had to have known of that harassment of Complainant Tillman which was neither observed by its supervisors nor reported to it. See Findings of Fact Nos. 49-67. The Commission's case was not assisted by the relatively sporadic incidents of alleged verbal racial harassment against employees other than Complainant Tillman. See Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 633 (Iowa 1990). See Findings of Fact Nos. 52-65. In one of these instances, where Caroline Tillman was referred to as a "scab," it was noted there was an absence of evidence to support the conclusion that the use of this epithet was racially motivated. See Finding of Fact No. 59. It should be noted, however, that when there is evidence to support the proposition that "scab" or other nonracial words are used as "code words" to demean Blacks, such use may constitute racial harassment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1883 (3rd Cir. 1996). See Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 379 (Iowa 1986)("scab" combined with racial references as part of acts of harassment).
59. Nor has it been shown that Respondents Monfort's lack of knowledge of harassment was due to inadequate policies on racial harassment. While Monfort's written policies may not have been as detailed or extensive as some employers, e.g. Gary v. Long, 59 F.3d 1391, 1393-99, 68 Fair Empl. Prac. Cas. 581, 585-8 (D.C. Cir. 1995), they do define and prohibit racial harassment and encourage employees having a problem with another employee to contact a supervisor, the personnel department or a union steward. They are, therefore, sufficiently "calculated to encourage victims of harassment to come forward," Meritor Savings Bank v. Vincent, 477 U.S. 57, 73 (1986) to defeat the proposition that Monfort's lack of knowledge about the harassment of Complainant Tillman was due to its inadequate policies. See Finding of Fact No. 66. Whether these policies were sufficiently detailed so as to constitute an affirmative defense with respect to harassment not reported to the employer, see Meritor at 477 U.S. at 73, is not an issue in this case.
2. Prompt and Appropriate Remedial Action:
60. "An employer cannot stand by and permit an employee to be harassed by his co-workers." Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634 (Iowa 1990)(citing DeGrace v. Rumsfeld, 614 F.2d 796, 803 (1st Cir. 1980)). The requirement for "prompt and appropriate remedial action," Lynch v. City of Des Moines, 454 N.W.2d 827, 833, 835 (Iowa 1990), imposes "a reasonable duty on an employer who is aware of discrimination in the workplace to take reasonable steps to remedy it." Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634 (Iowa 1990).
61. Factors considered here in determining that this duty was met were "the gravity of the harm, the nature of the work environment, and the resources available to the employer." Id. "'[Such] appropriate corrective action' . . . require[s] some form, however mild, of disciplinary measures. Action is 'corrective' only if it contributes to the elimination of the problem at hand. Because disciplinary measures are more likely to decrease the likelihood of repeated harassment than a mere request to stop the behavior, disciplinary measures are [required]." Intlekofer v. Turnage, 973 F.2d 773, 778, 59 Fair Empl. Prac. Cas. 929 (9th Cir. 1992)(construing 29 C.F.R. S.1604.11(d) of the EEOC Guidelines on Sexual Harassment)). Under these standards, the warning given Mentel for the name calling harassment of the Complainant and the suspension given Goken for provoking the fight with the Complainant through racial harassment were appropriate remedies. See Findings of Fact Nos. 70, 84. Strong, clear oral warnings will be appropriate measures in many cases where the harassment of which the employer is initially aware is similar to that reported to have been committed by Henry Mentel and his coworkers in this case:
At the first sign of . . . harassment, an oral warning in the context of a counseling session may be an appropriate disciplinary measure if the employer expresses strong disapproval, demands that the unwelcome conduct cease, and threatens more severe disciplinary action in the event the conduct does not cease. [This is an appropriate] remedy in a case . . . where the harassing conduct is not extremely serious and the employer cannot elicit a detailed description concerning the occurrence from the victim. . . . [C]ounseling is sufficient only as a first resort. If the harassment continues, limiting discipline to further counseling is inappropriate. Instead, the employer must impose more severe measures in order to ensure that the behavior terminates. [T]he extent of the discipline depends on the seriousness of the conduct.
Intlekofer v. Turnage, 973 F.2d at 779-80 (emphasis added). See Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 635 (Iowa 1990)(harasser received written and verbal reprimands "and told that if there were any reoccurrences of 'inappropriate behavior,' he would be discharged").
62. Remedial action has a two fold purpose. The first is to stop any harassment which is underway. The second is to deter future harassment. These purposes are the bench marks against which the appropriateness of remedial action is measured. Fuller v. City of Oakland, 47 F.3d 1522, 1528, 67 Fair Empl. Prac. Cas. 992 (9th Cir. 1995)(citing Ellison v. Brady, 924 F.2d 872, 882, 54 Fair Empl. Prac. Cas. 1346 (9th Cir. 1991)). "If 1) no remedy is undertaken, or 2) the remedy attempted is ineffectual, liability will attach." Id.
63. The application of these benchmarks, however depends on employer being in a position where it knew or should have known of the acts of harassment. See Conclusion of Law No. 38. Thus, if there are subsequent acts of harassment which occur despite the remedies applied, and it is not shown that the employer knew or should have known about the new acts of harassment, it cannot be held liable for these subsequent acts. See e.g. Jeffries v. Metro-Mark, Inc., 45 F.3d 258, 259-61 (8th Cir. 1995)(no liability found where employer took corrective action with respect to harassment which it knew about, although plaintiff testified as to multiple acts of harassment of which employer was not aware); Higgins v. Gates, 578 F.2d 281, 282, 283 (10th Cir. 1978)(no liability found where employer took corrective action with respect to two acts of harassment and in absence of finding that employer was or should have been aware of other acts creating a hostile environment). Thus, although the corrective action taken by Monfort with respect to the harassment by Mentel was ultimately ineffectual, as Mentel's harassment continued, the employer is not liable as it was not aware of these new acts of harassment.
64. Another aspect of appropriate remedial action, which was undertaken in the instant case, was to inform the Complainant of the efforts to counter the harassment. See Spicer v. Virginia, 66 F.3d 705, 708 (4th Cir. 1995)(no liability-employee informed of steps taken to address her complaint); Barrett v. Omaha Nat. Bank, 728 F.2d at 426 (no liability- employee informed of disciplinary steps taken against her harassers); College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 508 N.E.2d at 594 (liability found-failed to inform employee of staff meeting where her complaint was investigated). See Finding of Fact No. 70.
65. The past practice of Respondents Monfort indicates that a prompt and appropriate response would have been undertaken if the continuing harassment of Complainant Tillman had been reported. Such response would have included investigation of the complaint, see Vaughn v. Ag Processing, Inc., 459 N.W.2d at 633-34 (prompt and thorough investigation a factor in finding employer not liable), and disciplinary actions ranging from warning to discharge. See Vaughn at 635 (harasser received written and verbal reprimands "and told that if there were any reoccurrences of 'inappropriate behavior,' he would be discharged."). Occasionally, offending employees were required to apologize to their victims or otherwise commit to ending their harassment. See Vaughn v. Ag Processing, Inc., 459 N.W.2d at 634 (harasser apologized to employee for his swearing). An apology alone, however, is not sufficient remedial action as the law "requires more than a mere request to refrain from discriminatory conduct." Davis v. Tri-State Mack Distributors, 981 F.2d 340, 343 (8th Cir. 1992).
66. There were flaws in Respondents Monfort's handling of incidents of harassment. An harasser could be a repeat offender who would receive only repeated verbal warnings because inadequate records were kept of prior verbal warnings. See Melsha v. Wickes Companies, Inc., 69 Fair Empl. Prac. Cas. 45 (Minn. Ct. App. 1990)(inadequate records resulting in insufficient discipline enabled harassment). There is no evidence, however, that this affected Complainant Tillman's situation. See Finding of Fact No. 80. Removal of graffiti was unacceptably slow. Waltman v. International Paper Co., 875 F.2d 468, 50 Fair Empl. Prac. Cas. 179, 189 (5th Cir. 1989)(citing Bennett v. Caroon and Black Corp., 845 F.2d 104, 105-06 (8th Cir. 1988)(employer failed to take prompt and appropriate remedial action when it waited one day to removed offensive cartoon depicting plaintiff in men's restroom)). Nonetheless, there is no evidence in the record that Complainant Tillman was affected by such graffiti. See Finding of Fact No. 81.
67. A possible flaw in Monfort's response to Tillman's complaint of harassment by Mentel was its failure to follow up and check with Tillman to ascertain if he was experiencing any further harassment. Cf. Fair Employment Practices (BNA) 405:6681, 405:6700 "EEOC: Policy Guidance on Sexual Harassment" (March 19, 1990) ("the employer should make follow-up inquiries to ensure the harassment has not resumed."). The authority relied on by the EEOC guidelines for this proposition is a federal district court decision. Fair Employment Practices (BNA) at 405:6701 n.39 (citing Delgado v. Lehman, 665 F. Supp. 480, 43 Fair Empl. Prac. Cas. 593 (E.D. Va. 1987)). In Delgado higher level management responded to complaints about sexual harassment by a supervisor by conducting a meeting, which included the supervisor and women under his supervision, in order to discuss the hostile environment and "clear the air." Delgado, 43 Fair Empl. Prac. Cas. at 596, 600. The only specific action taken as a result of the meeting was the suggestion by management "that everyone have lunch following the meeting." Id. There were also some unspecified recommendations made by management. Id. at 600. Management did no follow up to determine whether the suggestions had been followed or if meeting had succeeded in eliminating the harassment. Id. at 597, 600. There is nothing to indicate that the kind of warnings that were given in the instant case were given in Delgado. Given this difference in the fact situations between this case and Delgado, it cannot be said that the Monfort management failed to take prompt and appropriate action solely because it failed to conduct further follow-up on Tillman's complaint concerning the harassment by Mentel and his coworkers.