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When harassment case is on the line, be ready to prove you did everything you could to stop it

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in Discrimination and Harassment,Firing,Hiring,HR Management,Human Resources,Leaders & Managers,Performance Reviews

In the ideal world, it would be easy for HR pros to prevent harassment: We’d just tell employees to treat each other with respect. And they’d do it, right?


We don’t live in an ideal world. Throw in issues of race, and the picture often looks decidedly imperfect. In diverse workforces, prejudice (or misunderstanding) can simmer … until it boils over.

Employers have an obligation to try to prevent harassment when it erupts. But courts often give an “A” for effort. They won’t measure your efforts solely by whether your prevention strategy worked.

As long as an employer takes reasonable steps, it won’t be liable for preventing co-worker harassment as long as that harassment is dealt with once it occurs.

Recent case: Jeneka Peace-Wickham, who is black, took a job as a café supervisor, replacing a white employee who had allegedly been fired for engaging in a work stoppage. Peace-Wickham later came to believe the firing ignited racial tensions that some white employees then took out on her because she is black.

Peace-Wickham and a white co-worker complained that each had made racially tainted remarks to the other. The employer investigated, separated the two and even brought in an outside counselor to see if tensions within the workgroup could be lessened.

Then it assigned an HR staffer to serve as the point person to provide ongoing support and consultation. Plus, everyone in the workplace had to attend mandatory diversity and anti-harassment training sessions.

Despite those efforts, Peace-Wickham complained that she overheard two white employees who were purchasing food in the café complain about poor service by stating, “Back in the day, down South, blacks would have been hung for things like that.” The HR office asked her to identify the employees, which she was unable to do.

Then another white employee commented that the café had “changed’ since Peace-Wickham had arrived and that she wanted the old supervisor back. Peace-Wickham again complained and this time was able to identify the offending employee. The employer spoke with the white employee, explained that her comment was inappropriate in light of the racial tension in the café and said the incident would be formally addressed in her next performance review.

Peace-Wickham didn’t report any further incidents. She did, however, sue, alleging she had been forced to work in a racially hostile work environment.

The court disagreed. It looked at the efforts the employer made to address Peace-Wickham’s concerns and found them reasonably calculated to prevent and stop harassment. Although they may not have been immediately effective, it appeared that over time they were.

Hiring an outside counselor, warning employees that racially charged statements would influence performance reviews and mandating anti-harassment training sessions were all reasonable actions designed to prevent and stop any further harassment. (Peace-Wickham v. Walls, et al., No. 09-4690, 3rd Cir., 2010)

Final note: The employer did everything right. It disciplined those employees it determined had been involved in potential harassment, warned others that such behavior was wrong and acted fast when presented with enough information to do so.

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