Delta Air Lines was not responsible for the discriminatory jokes and actions of its employees, an appellate court in Denver has ruled.

The 10th Circuit Court of Appeals this week affirmed a federal judge's dismissal of a lawsuit by a former Delta baggage handler — but said the behavior he complained about could have been "racially motivated."

David E. Hollins, who is black, filed suit in federal court in 1997. He said co-workers joked about a hangman's noose and then later hung one from the ceiling in an area where he worked. Other nooses were found near the workplaces of other black employees.

Hollins claimed little was done in response to the nooses and said supervisors watched him and other black employees more closely after they complained.

Hollins was later fired by Delta in a dispute over time off.

In 1999, U.S. District Judge David Sam dismissed the lawsuit, siding with Delta, that the noose and jokes were not necessarily racist acts.

The appellate court, while agreeing that Delta cannot be held liable for the harassment, still rejected Sam's reasoning that the "joke and the presence of hangmen's nooses were uncontrovertedly innocuous. These are genuine issues of material fact that preclude summary judgment on the hostile work environment issue," the court said.

Federal law says employers are not automatically liable for harassment committed by their employees.

Hollins, the 10th Circuit judges said, had to prove that "Delta was itself negligent" because it knew, or should have known, about what happened but didn't stop it.

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"The focus is not on whether the employer is liable for the bad acts of others, but whether the employer itself is responsible for failing to intervene," the ruling stated.

Delta attorneys said the company had a written harassment policy in place before the incidents arose and that immediate action was taken against employees who told the jokes and hung the ropes.

"Mr. Hollins does not contend that any other ropes were found in the workplace after this action as taken by Delta," the court said. "When Delta was presented with a potentially harassing situation, it immediately investigated, took corrective action and disciplined any offending employees."


E-MAIL: mtitze@desnews.com

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