Employees will be employees. You can only do so much to keep them from saying and doing boneheaded things. But once they do, must you respond to every single incident? Yes, you should, a court said this week. Otherwise, your actions could show your “indifference” to harassment claims.
Case in Point: Two black employees at a Missouri railyard sued under federal and state law, saying they suffered racial harassment. They alleged they were subjected to racial slurs, threats of violence and lots of graffiti, including swastikas, references to the “KKK” and messages like “I hate n******” and "kill the n*******" carved into workbenchs and spray painted on walls. The men also cited Confederate flags displayed on some co-workers' cars.
A lower court dismissed the case, saying the co-workers’ conduct was not “severe and pervasive” enough to create a racially hostile workplace. Even if it was, the court said, the employer responded correctly by painting over the graffiti and firing one harasser.
But the two men appealed and the appellate court reversed, sending the case to a jury trial.
Reason: While the appellate court acknowledged that “the company did respond to some instances of harassment,” the employer’s response just wasn’t 100% good enough. That's because, “supervisors at other times acquiesced in discriminatory behavior or were at least indifferent to complaints.”
The company tried to argue that the incidents were “too sporadic” to be deemed harassment. But the appeals court said frequency is only one factor that courts weigh and, instead, courts look at the “totality of the circumstances,” to decide whether a hostile environment exists. (Watson v. CEVA Logistics U.S. Inc., 8th Cir., 8/30/10)
3 Lessons Learned … Without Going to Court
1. Be vigilant. Once the employer had notice of racial misconduct, it needed to stay vigilant and monitor the workplace closely for unacceptable behavior.
2. Respond to all. Employers need to respond to every single event of misconduct. It’s not enough to respond to some complaints and not others. This is often called “swiss cheese responding.” There are holes in this approach.
3. Paint isn’t enough. In this case, the employer tried to “cover up” the problem with a can of paint when, in fact, it should have also recognized the need to train the workforce to prevent the conduct in the first place. Be proactive, not just reactive.
- Intentional bias can spur court to install applicant into job.
- Unionized? You may be able to use progressive discipline to address some forms of harassment
- Worker has duty to file complaint.
- Beware desperate 'whistle-blower': Document reason for firing to stop retaliation claim
- Punish offenders to set example that prevents harassment