In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2057

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellee,

and

JAMES M. FERGUSON,

Intervening Plaintiff-Appellee,

v.

PIPEFITTERS ASSOCIATION LOCAL UNION 597,

Defendant-Appellant.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 98 C 1601, 98 C 3217—David H. Coar, Judge.

____________

ARGUED FEBRUARY 28, 2003—DECIDED JULY 1, 2003

____________

Before POSNER, MANION, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. The EEOC brought suit against

Foster Wheeler Constructors, the prime contractor on a

project to construct a recycling plant in Robbins, Illinois,

and a local of the pipefitters union that supplied workers

to Foster Wheeler. The suit, based on Title VII and also on

42 U.S.C. § 1981—but the standards are the same under the
2 No. 02-2057

two statutes, at least so far as bears on this case, Bennett v.

Roberts, 295 F.3d 687, 697-98 (7th Cir. 2002); Patton v.

Indianapolis Public School Board, 276 F.3d 334, 337-38 (7th Cir.

2002); Thompson v. Potomac Electric Power Co., 312 F.3d 645,

649 n. 1 (4th Cir. 2002)—sought to affix liability to the

defendants for the harassment of black pipefitters by their

white coworkers. One of the eight pipefitters on whose

behalf the EEOC had sued, James Ferguson, intervened in

the suit as a plaintiff, as he was entitled to do, 42 U.S.C.

§ 2000e-5(f)(1), seeking higher damages than those sought

on his behalf by the Commission. Foster Wheeler settled,

but the case against the union proceeded to a bench trial,

which the plaintiffs won. The judge awarded compensatory

damages to the EEOC on behalf of the eight black workers

totaling $105,000, punitive damages of $50,000, and an

injunction against the union’s “permitting a hostile work

environment based on race to exist for its members at any

job site.” The union appeals.

The harassment consisted primarily of graffiti scrawled on

the interior walls of portable toilets at the construction

site—slogans such as “death to all niggers,” “your grandmother is such a slut she even fucks niggers,” “Fergie

[plaintiff James Ferguson], if you don’t want to be treated

like a nigger, don’t act like one,” “The shines are ruining

this country,” and “Fuck Niggers.” Additional acts of harassment included the placing of a swastika in a black

pipefitter’s toolbox, the hanging of a Ku Klux Klan poster in

a trailer used by black pipefitters during breaks, and the

display of a hangman’s noose. That the effect of the graffiti

and the other acts, considered together, was to create a hostile working environment for the black pipefitters is not in

doubt. The only question is the union’s legal responsibility.

Dennis Hahney, the union steward for the Robbins project

and also Foster Wheeler’s superintendent of pipefitting, and
No. 02-2057 3

in the latter capacity essentially the superintendent of the

pipefitters assigned to the project, was aware of the graffiti,

but he did nothing about them until Ferguson complained

about the ones that mentioned him. Hahney responded by

ordering a foreman to paint over the graffiti; and this was

done. Hahney testified that if he were aware of a safety

problem he would take action, and indeed that if he had

thought the portable toilets needed cleaning he would have

seen to it that they were cleaned. But he didn’t try to rid the

toilets of graffiti. Another union official, Steven Toth, who

also knew about the racially offensive graffiti, made no

effort to eliminate them either, even though he had on his

own initiative ordered the painting over of a drawing in one

of the toilets of a penis and a vagina because he thought the

drawing might be considered “a little offensive.” None of

the black pipefitters complained to the union about the

racially hostile environment created by their white coworkers except Ferguson, and his complaint was narrowly

focused on the graffiti that referred to him rather than on

the ones that referred to blacks in general.

An employer who is aware of racial or sexual harassment

that is making the workplace intolerable for the targets of

the harassment, and does nothing to correct the situation, is

guilty of violating Title VII. The EEOC argues that when the

harassers and the targets are represented by a union, the

union has exactly the same legal responsibility as the

employer. Objections come quickly to mind. The employer

is in a better position than the union to prevent or eliminate

harassment because it can discipline its employees;

the union cannot. If a worker complains to the union that he

is being harassed, all the union can do is file a grievance on

his behalf against the employer; the union cannot eliminate

the harassment itself—that is the company’s responsibility.

Since the employer is both fully liable for failing to take

effective measures against coworker harassment and far
4 No. 02-2057

better positioned to apply such measures, what is to be

gained, except litigation clutter, by imposing the same liability on the union? Foster Wheeler Constructors is a

substantial firm and there is no suggestion that the EEOC

could not obtain, on behalf of the eight black workers who

were harassed, full relief against Foster Wheeler, which it

also sued and which settled.

A further consideration is that members of different unions, or union and nonunion workers, often find themselves

working at the same site. Although the portable toilets in

which racial graffiti were found were intended for the use

primarily of pipefitters, other workers had access to and

sometimes used them and may have been responsible for

some of the graffiti. The pipefitters union had no control

over workers belonging to other unions, or for that matter

over the portable toilets.

Unimpressed by practical considerations—determined, it

seems, to show itself as being as formalistic as any

court—the EEOC points to section 703(c) of Title VII, which

forbids a union “to exclude or to expel from its membership,

or otherwise to discriminate against, any individual because of

his race, color,” etc. (emphasis added). It points out that the

italicized words are similar to those in section 703(a), which

forbids an employer “to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color,” etc. Therefore, the EEOC reasons, since an

employer is guilty of discriminating if it unreasonably fails

to correct a problem of coworker harassment, so must the

union be. In other words, since the company is legally

responsible for harassment by its employees, the union must

be legally responsible for harassment by its members (more

precisely, by members of the bargaining unit, since the
No. 02-2057 5

union cannot insist that they become union members), even

though they are the same people. 

The asserted symmetry between employer and union is

spurious. The duties of nondiscrimination imposed by

sections 703(a) and (c) have reference to the respective roles

of company and union in the workplace. The company, not

the union, controls the workplace, including the portable

toilets erected at the site for use by the workers. The union

is not the company, but the workers’ agent in dealing with

the company. If it discriminates in the performance of its

agency function, it violates Title VII, but not otherwise. Thus

a union that refuses to accept blacks as members, or refuses

to press their grievances, is guilty of discrimination. But if

it merely fails to effectuate changes in the workplace—if for

example it urges the company to take steps to prevent

harassment and the company fails to do so—the union is not

guilty of discrimination, though the company is. Notice that

if the EEOC were right, the company would be liable for the

union’s discriminating against black employees in the

grievance process.

The separate spheres, and correspondingly different

responsibilities with regard to discrimination, of labor and

management are blurred in the present case by the curious

dual role of Hahney as union steward and supervising

pipefitter. It seems doubtful, though the point is not pressed

by any of the parties, that he was even legally eligible to be

a union steward. In implementation of the National Labor

Relations Act’s prohibition against company unions, the

Labor Board has ruled that a supervisory employee of the

company cannot hold a union post that would create

divided loyalty and thus undermine the union. NLRB v.

General Steel Erectors, Inc., 933 F.2d 568 (7th Cir. 1991); Local

636, United Ass’n of Journeymen v. NLRB, 287 F.2d 354, 361-62

(D.C. Cir. 1961). Hahney’s dual role as company supervisor

and union steward may have run afoul of this rule, but the
6 No. 02-2057

only point important to this case is that his dual role makes

it unclear whether Ferguson was complaining to him in his

capacity as a union steward or in his capacity as a company

supervisor. But it is probably the latter. Remember that

Hahney ordered a foreman to paint out the graffiti that

Ferguson had complained about. When Hahney did this he

was acting for the company, because a union official has no

authority to order workers to do anything. A union official

qua union official cannot order a company foreman to see

to it that a portable toilet is repainted any more than he can

order the foreman to build a portable toilet.

Ignoring Hahney’s anomalous status for the moment, we

think the EEOC would if pressed concede that a union is not

guilty of discrimination for trying but failing to rectify

workplace harassment, and would argue instead that the

union must do what it can even if success cannot be guaranteed because the union does not operate the company.

But inaction, unless invidious, is not discrimination in any

accepted sense of the term. Most people don’t take active

measures to combat discrimination; their inaction does not

condemn them as discriminators. Suppose that a union is

lackluster, and while it will file a grievance if pressed to do

so by a member of the collective bargaining unit, it will do

nothing on its own initiative. We do not understand how

such passivity, though it means the union will not take

measures to prevent racial harassment on its own initiative,

could be thought a form of racial discrimination; yet that is

the EEOC’s position. Unsurprisingly it has only limited

judicial support. (The surprise is that it has any.) Woods v.

Graphic Communications, 925 F.2d 1195, 1201 (9th Cir. 1991),

says that an affirmative duty to prevent racial discrimination “may exist,” but only Howard v. International Molders &

Allied Workers Union, 779 F.2d 1546, 1553 (11th Cir. 1986),

actually imposes such a duty. Thorn v. Amalgamated Transit

Union, 305 F.3d 826, 832-33 (8th Cir. 2002), emphatically
No. 02-2057 7

denies that there is such a duty; see also Goodman v. Lukens

Steel Co., 482 U.S. 656, 687-89 (1987) (separate opinion). York

v. American Tel. & Tel. Co., 95 F.3d 948, 956-57 (10th Cir.

1996), while holding that a union may not “acquiesce” in the

employer’s unlawful discrimination, states that “mere

inaction does not constitute acquiescence,” though it is

unclear what the court means by “mere inaction.”

An affirmative duty of the union to investigate and rectify

discrimination by the employer derives no support from the

statutory language, as we have seen, and fills no gap in the

remedial scheme that the statute creates. Imposing such a

duty would make for factually messy cases because the

union’s power is so much more limited than the employer’s

when it comes to making changes in personnel or work

rules. (More precisely, because, so far as the evidence

suggests, this union’s power over personnel and work rules

is so much more limited than the employer’s; other unions,

operating under other collective bargaining agreements,

might be delegated additional powers that would alter the

analysis in this opinion.) Suppose only one worker is

harassing blacks. The union is not his employer and cannot

fire him, so the question would be whether it had done all

it could to get the company to fire him, and that will often

be an impossible question to answer by the methods of

litigation. There is also the 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.

For all these reasons, we reject the EEOC’s contention that

unions have an affirmative duty to prevent racial harassment or other forms of unlawful discrimination in the

workplace. But this conclusion does not resolve the case

because the district court had, and the EEOC defends, an

alternative ground for deciding the case against the union.

The ground is that the union’s inaction was selective. The
8 No. 02-2057

union would take the initiative to solve other problems in

the workplace, just not racial harassment.

Evaluation of this argument requires us to distinguish

among several types of case in which selective inaction by

a union might be thought a form of discrimination. In the

first, the union is vigilant to detect and correct mistreatment

of white workers but has a policy of ignoring the interests

of black ones. If a black worker asks the union to grieve a

complaint, the union refuses, though if the worker were

white the union would grieve his complaint. This is a clear

violation not only of section 703(c) of Title VII, McDonald v.

Santa Fe Trail Transportation Co., 427 U.S. 273, 284-85 (1976);

York v. American Tel. & Tel. Co., supra, 95 F.3d at 956, but also

of the union’s duty of fair representation of all members of

the collective bargaining unit, a point settled by the Supreme Court many years before Title VII was enacted. Steele

v. Louisville & Nashville R.R., 323 U.S. 192, 202-04 (1944). 

In the second type of case, the union is not bigoted, but it

has decided as a matter of policy not to grieve complaints of

discrimination by black members of the bargaining unit

because the company is hostile to such complaints and the

union fears that this hostility will make it harder for the

union to succeed in its dealings with the company. This the

Supreme Court held to be a form of discrimination in

Goodman v. Lukens Steel Co., 482 U.S. 656, 668-69 (1987). It

was an easy case, because it has never been a defense to a

charge of discrimination that the discriminator was not

actuated by racist or other invidious motives, but may just

have been trying to maximize his profits, pursuant to the

maxim that the only color that interests a businessman is

green. It is not a defense for a shopkeeper who refuses to

hire blacks that the only reason he does so is that his customers don’t like blacks.
No. 02-2057 9

In a step beyond Goodman, suppose a union adopted a

policy of not assisting workers who complain about racial

or sexual harassment, whether they are white or black, male

or female. The union believes that these workers have other

remedies and that union intervention would unduly

complicate the union’s role in dealing with the employer on

behalf of all the workers composing the bargaining unit.

Nevertheless it might be argued that, though unresponsive

not to the interests of particular minorities such as its black

workers or other protected groups as such but merely to the

class of worker complaints that consists of complaints about

discrimination, the union is refusing to take discrimination

seriously and to that extent acquiescing in or at least

condoning it by signaling to both the employer and the employees its belief that discrimination is not a serious problem. Cf. Salvadori v. Franklin School District, 293 F.3d 989, 998

(7th Cir. 2002); Marquart v. Lodge 837, International Ass’n of

Machinists & Aerospace Workers, 26 F.3d 842, 853 (8th Cir.

1994).

This is a tenuous theory of discrimination, and even more

tenuous is a theory that would find discrimination in a

fourth type of case, one in which there are no complaints

but the union is proactive (i.e., takes the initiative) when it

comes to safety and other matters, perhaps even to some

forms of discrimination, while adopting a passive stance

with regard to racial harassment. This fourth category takes

us far beyond Goodman. The argument for liability in this

class of cases would be that a union that is assiduous in

assisting the workers whom it represents with some types

of problem but indifferent to problems of racial discrimination is treating such discrimination as something unimportant, and to that extent, once again, is acquiescing in or

condoning it. Suppose the reason Toth ordered the drawing

of the penis and the vagina effaced, without his having been

prompted to do so by a complaint from anyone, was that he
10 No. 02-2057

was trying to prevent sexual harassment. It could be argued

that by failing to do the same with regard to racial graffito

he would be signaling a belief that racial discrimination is

less serious than sex discrimination. This could be thought

to belittle the long and still continuing struggle of black

Americans against racism. And, signals aside, the hard fact

would be that blacks were getting less protection from the

union than women were, and arbitrarily different treatment

is the essence of discrimination. The objection to this theory

is that uneven remediation of different forms of discrimination may reflect nothing more than a need to determine

priorities so that limited resources can be concentrated on

the most urgent problems of discrimination facing a particular employer (or union) at a particular site at a particular

time, as in Schroeder v. Hamilton School District, 283 F.3d 946

(7th Cir. 2002); see id. at 958 (concurring opinion). But we

need not pursue the issue further. There is no evidence that

Toth was concerned about sexual harassment when he

ordered the deletion of the off-color drawing. Indeed, there

is no indication that any of the pipefitters on the Robbins

project were women.

What the EEOC is left to argue is that the fact that Toth

once showed initiative with respect to a workplace problem,

acting without waiting for a complaint to efface the sexual

graffito, and that Hahney acknowledged that if he noticed

a dirty toilet he might order it cleaned up and if he noticed

a safety problem he would try to solve it even if in neither

case a worker complained, is evidence of a policy of subordinating racial to other workplace problems. The evidence

is insolubly ambiguous. Toth’s single act of self-activated

intervention was not an assumption by the union of responsibility to police the Robbins project for any and all workplace problems and take action if it noticed one. This single

act could have created no reliance reasonable or otherwise

on the part of the black pipefitters that they would have no
No. 02-2057 11

need to complain about harassment—that the union would

act without any prompting.

The interpretation of Hahney’s conduct is fogged by his

anomalous dual role. When he said he would order a dirty

toilet cleaned up or a safety problem attended to, it is unclear whether he would be doing so as a union steward or

as a company supervisor. But the latter is the more likely

interpretation because, as we noted earlier, while a union

steward could complain to the company about a dirty toilet,

he couldn’t order it cleaned up.

We are miles from Goodman, where the union refused as

a matter of policy to grieve complaints about discrimination

against black members of the bargaining unit. The

pipefitters union had no such policy. The case would be no

different in any realistic sense had Toth left that drawing

alone. The union qua union did very little other than in response to complaints—too little in our view to justify the

district judge’s inferring a policy of treating discrimination

problems differently from other workplace problems, even

if that were a viable basis for liability.

The judgment is reversed with instructions to enter judgment for the union.

REVERSED.
12 No. 02-2057

ROVNER, Circuit Judge, dissenting. My colleagues’ analysis

is premised on the notion that the union has no control over

workplace conditions and so lacks the authority to deal with

workplace harassment of the kind proven in this case. E.g.,

ante at 5 (“[t]he company, not the union, controls the

workplace”). Confining liability to the company on that

basis has the appeal of simplicity, but it may not always

comport with reality. My brothers themselves leave room

for the possibility that a collective bargaining agreement

might confer upon a union sufficient power vis- à-vis personnel assignments and work rules to expose the union to

liability for workplace discrimination. Ante at 7. Authority

is not always conveyed formally, however (see, e.g., Kujawski

v. Board of Commissioners of Bartholomew County, Ind., 183

F.3d 734, 739-40 (7th Cir. 1999) (policymaking authority);

Moriarty v. Glueckert Funeral Home, Ltd., 155 F.3d 859, 865-66

(7th Cir. 1998) (agency principles)), and we should not close

our eyes to the realities of the workplace, particularly in

view of the broad remedial purposes of Title VII and section

1981 (see, e.g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437,

88 S. Ct. 2186, 2202 (1968), quoting United States v. Price, 383

U.S. 787, 801, 86 S. Ct. 1152, 1160 (1966); Veprinsky v. Fluor

Daniel, Inc., 87 F.3d 881, 889 (7th Cir. 1996)). Where the facts

reveal that, in practice, the union enjoys significant control

over working conditions and has the power to correct workplace inequities, it is appropriate to hold it liable for failing

to do so on the same basis as the employer. 

The evidence in this case permits the inference that the

pipefitters’ union in fact did have control over significant

aspects of the Robbins workplace, including the ability to

address precisely the type of discrimination at issue here.

The person who functioned as the union steward, Dennis

Hahney, was also the piping superintendent for Foster

Wheeler. As such, Hahney hired pipefitters for the Robbins

project (R. 290-2 at 417), chose foremen and everyone else in
No. 02-2057 13

the chain of command beneath him (id. at 429), decided

whom to lay off when workforce reductions were necessary

(id. at 418, 501-02), laid out the work for pipefitters to be

completed at any given time (id. at 418), doled out work

assignments (id. at 459-60), walked the job site to see that

pipe was being installed as planned (id. at 473), made sure

that everyone had a safe work environment (id. at 439), and

strove to maintain “some sort of semblance of peace”

among the pipefitters (id. at 471). It was Hahney’s responsibility to see that things ran smoothly between the company

and the pipefitters (id. at 418) by, among other things, ensuring that none of the pipefitters was “hassle[d]”(id. at

421). Hahney’s testimony makes clear that he had at least

some power to resolve workplace issues on his own. He

testified, for example, that he would have acted independently to remedy any safety problem he noticed. Id. at 439.

His testimony also suggests that his authority extended to

the conditions of the portable toilets at the Robbins project

that were the situs of the graffiti underlying the plaintiffs’

harassment claim. Although those toilets were leased by

Foster Wheeler and were cleaned by the contractor that

supplied them, Hahney testified that he would have taken

steps to have them cleaned if necessary (id. at 423, 489); indeed, on one occasion when workers were tracking snow

into the toilets, he arranged for laborers on the job site to

clean them out (id. at 461-62). So the notion that Foster

Wheeler had exclusive control over the toilets and thus the

sole authority to deal with the graffiti is an illusion. Lest

there be any doubt on that score, one need only recall that

when the union’s business agent, Steven Toth, noticed sexual graffiti in one of toilets that he thought “might be a little

offensive” (R. 290-3 at 514) he took the initiative to have it

dealt with (id. at 513-15). Moreover, when Toth learned that

pipefitter James Ferguson had complained about some of

the racial graffiti in the toilets, Toth immediately turned to
14 No. 02-2057

Hahney and admonished him, “[W]e can’t stand for that. If

there’s anything like that in the port-a-johns, see your powers to be and have the laborers paint them over.” Id. at 517.

Although Toth opined on the witness stand that “[i]t was

Foster Wheeler’s job to get rid of [the graffiti]” (id. at 518),

his conduct and his remarks to Hahney suggest that the responsibility in fact was not Foster Wheeler’s alone and that

the union did not treat it as such.

On these facts, it was a fair inference that the union had

the power to deal with the racially-charged graffiti defacing

the toilets, but intentionally acquiesced in the harassment

rather than exercising its authority to remove the graffiti.

That is precisely the inference that Judge Coar drew after

hearing the evidence, and I can see no clear error in that assessment. After all, it is undisputed that Hahney, at least,

was aware of the rampant graffiti on the walls of the toilets.

See, e.g., R. 290-2 at 423, 426. The offensive character of that

graffiti was obvious. As Judge Coar put it, “Only a visitor

from another planet would fail to understand the ugliness

of what was written and drawn on those walls.” 2002 WL

976618, at *7. The evidence does not bespeak a perception

by union officials that they were powerless to act. Again,

Hahney expressed no reservation about taking independent

action to correct a workplace safety problem or to clean up

a dirty toilet, and Toth did act to have sexually-charged

graffiti removed from one of the toilets, recognizing its

offensive character. Given the union’s evident willingness

and ability to address sexual graffiti, it is an entirely fair and

permissible inference that the union was deliberately

indifferent to the rampant racial graffiti that defaced the

toilets.

Only if we dismiss the authority exercised by union officials such as Hahney and Toth can we say that there was no

basis for imposing liability on the union. My colleagues
No. 02-2057 15

reason that when union steward Hahney was dealing with

personnel and work issues, he was acting for the company,

not the union, and so could not expose the union to liability

for his failure to redress the graffiti problem. Ante at 6, 11.

This neat division of Hahney’s two roles strikes me as artificial, however. Hahney’s own testimony reflects no such

bisection of his responsibilities. See, e.g., R. 290-2 at 418-20;

2002 WL 976618, at * 4 ¶ 60. It may well have been inappropriate for the union to make Hahney its steward given his

management responsibilities. Ante at 5-6. Whether that decision was well thought out or not, anomalous or not, we do

not know. But having placed a management official in the

role of union steward, the union ought to bear the consequences—good and bad—of that decision. Hahney’s testimony suggests that in his dual role, he had the authority to

address the graffiti. Toth’s testimony about removing the

sexual graffiti confirms that union officials not only could

but on one occasion did take initiative to remediate this type

of problem. Toth’s initiative on that occasion may not, by

itself, establish that the union had assumed responsibility to

correct any and all workplace problems (see ante at 10-11),

but coupled with Hahney’s testimony it at least belies the

notion that the union lacked the power to address the

graffiti that defaced the toilet walls. The union’s de facto

authority—unexercised despite the patently offensive

nature of the graffiti—supports the district court’s decision

to impose liability on the union.

We need not wring our hands in worry about the awkward position in which a union might find itself if we obligate unions to take action where some of its members are

harassing or otherwise discriminating against other members, as apparently was the case here. See ante at 7. Unions

already are called upon routinely to navigate a thorny path

between the clashing interests of their members. See, e.g.,

Thorn v. Amalgamated Transit Union, 305 F.3d 826, 833 (8th
16 No. 02-2057

Cir. 2002) (“When the employer investigates a sexual harassment claim by one union member against another, the

union has a statutory duty to fairly represent both in their

disciplinary dealings with the employer.”). My colleagues

may be correct in holding that, as a general rule, unions

have no affirmative duty to prevent discrimination in the

workplace. But it seems to me that a union may nonetheless

take on that obligation if, as the facts suggest was true at the

Robbins project, union officials assume responsibility for the

type of workplace conditions that later give rise to a discrimination claim. Having voluntarily crossed the boundary

separating the company’s domain from the union’s, see ante

at 5, the pipefitters’ union was not free to turn a blind eye to

the racial graffiti that was staring its officials in the face.

I respectfully dissent.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-1-03