HARASSMENT ISN’T JUST ABOUT SEX: PREVENTING RACIAL HARASSMENT IN THE WORKPLACE

By Jonathan K. Driggs, Attorney at Law

Does $230,000.00 sound like a lot of money to you?  How about $450,000.00?  Would your business like to write out a check for one of these amounts when it could otherwise be avoided?  Probably not.  But in 2013, one Utah employer settled a racial harassment/retaliation case for $230,000.00, and another Utah employer settled a national origin/retaliation case for $450,000.00 (the largest settlement for a national origin case ever in the state of Utah).  Ouch.                                                                                                                                                

You see, the U.S. Equal Employment Opportunity Commission (EEOC) sued each of these employers on behalf of groups of employees who filed complaints about racially-oriented harassment coming from their supervisors.  Wait a minute, you mean to tell me that in the 21st Century there still are supervisors who use the N-word and other ugly racial slurs?  As much as it pains me to say it, the answer is yes.  According the EEOC’s current “Strategic Enforcement Plan,” one of that agency’s priorities is to protect “vulnerable workers”—including the immigrant population and other minority groups. 

Statistically speaking, your chances of being sued by the EEOC regarding a charge of discrimination are pretty low (i.e., the EEOC files a lawsuit against the employer in federal court regarding the administrative charge).  Out of over 90,000+ charges filed with the agency each year, the EEOC files suit on a relative few (e.g., 122 lawsuits filed in 2012).  However, it appears that if serious allegations are made about racial harassment at work coming from supervisors, an employer’s chances of being sued increase significantly.

I am not going to discuss the ugly details alleged in these recent Utah cases, but I do think it is time that employers become more aware of this particular problem.  Consider the following:

  • While racial harassment can occur in any workplace, the problem appears to be more prevalent in blue/grey collar environments.  Employers in construction, manufacturing and retail environments need to be especially careful.
  • Harassment prevention trainings given to employees should address the issue of racial harassment in addition to sexual harassment.  There are still a surprising number of people that think racist language, name-calling, joke telling, etc., is acceptable social behavior.  This training, however, should be done with care and diplomacy (in other words, managers like Michael Scott from the TV show “The Office” should not be allowed to perform the training!)
  • Managers should receive specific training on EEO policies, including on race/national origin issues, and be specifically instructed that racial slurs of any type are strictly prohibited.  In some workplaces (often blue/grey-collar work environments), entry-level supervisors may not have a lot more experience or sophistication than the employees they manage.
  • Provide your managers with some basic “managerial/communications” training.  When frustrated, inexperienced supervisors can be tempted to resort to bullying tactics—which can lead to things like racial name-calling if it is already in their vocabulary—when they lack skills to otherwise motivate employees in constructive ways.
  • Harassment prevention policies must allow employees to complain to someone other than their immediate manager (who may be causing the problem), and any complaints should be taken seriously.  Retaliation must not be allowed to occur in any way, shape or form (remember, both of the cases mentioned above included retaliation claims).
  • So long as supervisors have the ability to take tangible employment actions against employees (hire, transfer, fire, etc.), they are considered “agents of the employer” in the eyes of the law.  Let me put it another way: when a supervisor calls an employee by a racist name, in the eyes of the law, the employer has effectively called the employee by the racist name.  Not good.
  • Do you know how your supervisors speak to your employees when “the boss/owner isn’t around?”  Appropriate, lawful monitoring of the workplace from time to time makes a lot of sense.

The large settlements mentioned above provide an important wake up call for employers regarding preventing racial harassment in the workplace.  This type of behavior should have no place in our work environments.

 

This article should not be construed as legal advice.  Copyright ©2014 by Jonathan K. Driggs, Attorney at Law, P.C.  All rights reserved.  Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission.  www.jkdlawpc.com

 

Jonathan’s popular “Employment Law for Managers Seminar” is being offered by the State of Utah’s “Custom Fit Programs” in Davis County, Salt Lake County and Utah County during February and March of 2014 (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers).  Significantly discounted rates are available for “for-profit” employers.  This is the same seminar Jonathan presents for major corporations throughout the United States.  Click here for details: http://www.jkdlawpc.com/seminars/

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