Sexual, Racial Harassment at NASCAR?

So I thought I'd throw in the Rowdy Consigliore's two-cents on the recently filed discrimination suit against NASCAR by a former official, Mauricia Grant. I've been in on some harassment defense work before, and can tell the Rowdy nation the following:

1. Why did Ms. Grant wait so long to file suit? Well, in people time, 8 months seems like a long time. But, in lawyer time, 8 months is the blink of an eye. My guess would be that the following happened immediately after Ms. Grant was fired: (1) Grant consulted an attorney or the Equal Employment Opportunity Commission ("EEOC") about her claims; (2) under either case, the attorney or the EEOC investigated Ms. Grant's claims, making NASCAR aware of the essential allegations; (3)(a) if Ms. Grant went to the EEOC, the EEOC said that they didn't have enough information to determine whether Ms. Grant had a case and issued what is called a "right to sue" letter to Ms. Grant, or; (3)(b) NASCAR refused to settle with Ms. Grant's attorney on the terms provided by the attorney, then Ms. Grant and her attorney went to the EEOC and obtained a right to sue letter; and (4) Ms. Grant filed suit against NASCAR. For this process to only take 8 months is actually pretty fast in lawyer time.

2. Should NASCAR investigate? They already have. I can guarantee you that an organization that is as large and with the resources of NASCAR investigated this thing to death as soon as Ms. Grant's attorney or the EEOC made NASCAR aware of Ms. Grant's claims. That NASCAR is allowing this suit to be filed (and didn’t settle quietly) shows that NASCAR is at least fairly confident that Ms. Grant's claims are overblown.

3. What about Ms. Grant's claims...aren't they really bad? Yes, they are. No doubt about it. But I can tell you that when you really parse out the goings on of everyday life (or pay an attorney to do so for you) you can make a lot of things sound really bad. Just imagine if someone with an agenda described the way you talk to your friends or family in a long, drawn out way similar to a lawsuit complaint. It would really be startling. I'm not saying that the allegations made by Ms. Grant in her complaint are to be down-played at all...I'm just saying that sometimes what comes out as a joke or messing around can later be spun to serve an agenda.

4. Are Ms. Grant's allegations harassment? It depends (that's a lawyer's answer for you). The bottomline of harassment is unwelcomeness...if a gesture or touching or something said is unwelcome by the person on the receiving end, then it's harassment. If it's not unwelcome, then it's not harassment. The court can only look back and try to determine if things were unwelcome or not. For instance, NASCAR will say that Ms. Grant didn't make it known that calling her names or saying things detailed in her complaint were unwelcome in her eyes (she didn't complain to her boss while she worked for NASCAR, etc.). Ms. Grant will say that it was unwelcome but she didn't say anything because she feared for her job. Whoever is more credible will win.

5. Will NACAR be held liable for the alleged harassment of Ms. Grant? It depends (another lawyer’s answer). Basically, NASCAR is liable for the conduct of its employees in the harassment context if it knew or should have known about the harassment and failed to take reasonable steps to address it. As I said, the minute NASCAR found out about Ms. Grant’s allegations (probably right after she was fired) they would have investigated. They probably found out that Ms. Grant never complained while she was working for NASCAR, and so NASCAR probably thinks it has a good argument for why it should not be held liable for the harassment perpetrated by its employees.

6. Will Ms. Grant really get $250 MILLION bucks? No. I can say that unequivocally without really knowing anything about the case. First, under Title VII of the 1964 Civil Rights Act (the federal law that prohibits sexual and racial discrimination) there are damages caps depending on the size of the defendant. NASCAR probably is in the largest category…and so the damage cap is $300,000. This cap does not include related state-law claims which Ms. Grant has no doubt alleged as well…so the total can be higher than $300,000. But, even the most egregious fact patterns that go to jury produce a few million dollar awards at most. Any higher and they usually get reduced on appeal.

7. What happened? From reading the complaint and seeing these cases go down…my guess of what happened is the following: While Ms. Grant worked for NASCAR she was on the receiving end of some stupid and objectively inappropriate remarks made by her fellow officials. She probably didn’t say much about it, took it in good fun, and generally was okay with it. It’s probably likely that every once in a while a remark would cross the line and Ms. Grant would be offended, but probably didn’t say much if anything to anyone for it to be redressed. In the eyes of NASCAR, Ms. Grant probably did something worth being fired over. And who knows, maybe if we knew the facts or were at the ground level we would think the same thing. In any event, Ms. Grant was fired and didn’t like it…so she remembered everything that was ever said to or about her and lawyered up. Her lawyer took one look at the allegations, one look at the deep-pocket defendant, and made tried to go for the gold. NASCAR’s lawyers probably wanted to quietly settle for a reasonable sum before all of this became public…but Ms. Grant’s attorney probably was asking for a lot more than NASCAR was willing to give. So there you have it…NASCAR wanting to settle for X and Ms. Grant wanting X + Y…a classic impasse. Now that litigation has been initiated, the sides will jockey for position and then settle when one side realizes that the other side has the weight of the law and facts behind it. I can guarantee you that NASCAR won’t want its officials deposed (and that deposition becoming public record) about the junior high-esque antics that likely reign supreme in the NASCAR garage on race weekends.

Well…that’s all I can think of. Hopefully this is enlightening if not a giant waste of your time.

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