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, 

, 697-98 (7th Cir. 2002); Patton v.
Indianapolis Public School Board, 

, 337-38 (7th Cir.
2002); Thompson v. Potomac Electric Power Co., 

,
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 grand-
mother 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 ha-
rassment 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 hos-
tile 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 cowork-
ers 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 lia-
bility 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 un-
ions, 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, condi-
tions, or privileges of employment, because of such individ-
ual’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., 

(7th Cir. 1991); Local
636, United Ass’n of Journeymen v. NLRB, 

, 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 guar-
anteed 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, 

, 1201 (9th Cir. 1991),
says that an affirmative duty to prevent racial discrimina-
tion “may exist,” but only Howard v. International Molders &
Allied Workers Union, 

, 1553 (11th Cir. 1986),
actually imposes such a duty. Thorn v. Amalgamated Transit
Union, 

, 832-33 (8th Cir. 2002), emphatically
No. 02-2057                                                  7

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

, 687-89 (1987) (separate opinion). York
v. American Tel. & Tel. Co., 

, 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 harass-
ment 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., 

, 284-85 (1976);
York v. American Tel. & Tel. 

, 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 Su-
preme Court many years before Title VII was enacted. Steele
v. Louisville & Nashville R.R., 

, 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., 

, 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 cus-
tomers 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 em-
ployees its belief that discrimination is not a serious prob-
lem. Cf. Salvadori v. Franklin School District, 

, 998
(7th Cir. 2002); Marquart v. Lodge 837, International Ass’n of
Machinists & Aerospace Workers, 

, 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 discrimina-
tion is treating such discrimination as something unimpor-
tant, 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 discrimina-
tion 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 particu-
lar employer (or union) at a particular site at a particular
time, as in Schroeder v. Hamilton School District, 

(7th Cir. 2002); see 

(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 subor-
dinating 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 respon-
sibility to police the Robbins project for any and all work-
place 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 un-
clear 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 re-
sponse 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 judg-
ment 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 per-
sonnel 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., 

, 739-40 (7th Cir. 1999) (policymaking authority);
Moriarty v. Glueckert Funeral Home, Ltd., 

, 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., 

, 437,

, 2202 (1968), quoting United States v. Price, 

, 801, 

, 1160 (1966); Veprinsky v. Fluor
Daniel, Inc., 

, 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 work-
place 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 responsi-
bility to see that things ran smoothly between the company
and the pipefitters (id. at 418) by, among other things, en-
suring 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 independ-
ently to remedy any safety problem he noticed. 

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); in-
deed, 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 sex-
ual 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 pow-
ers to be and have the laborers paint them over.” 

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 re-
sponsibility 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 as-
sessment. 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.” 

, 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 offi-
cials 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 arti-
ficial, however. Hahney’s own testimony reflects no such
bisection of his responsibilities. See, e.g., R. 290-2 at 418-20;

, at * 4 ¶ 60. It may well have been inappro-
priate for the union to make Hahney its steward given his
management responsibilities. Ante at 5-6. Whether that deci-
sion 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 conse-
quences—good and bad—of that decision. Hahney’s testi-
mony 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 awk-
ward position in which a union might find itself if we obli-
gate unions to take action where some of its members are
harassing or otherwise discriminating against other mem-
bers, 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, 

, 833 (8th
16                                                 No. 02-2057

Cir. 2002) (“When the employer investigates a sexual ha-
rassment 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 dis-
crimination 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