Make sure managers understand: They may be personally liable for racial slurs

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in Discrimination and Harassment,HR Management

Here’s some food for thought you may want to pass along to supervisors, managers and your colleagues in HR who deal directly with employees. If they are actively involved in any activity that creates a hostile work environment, they may find themselves personally liable as an aider and abettor.

What that means: Any jury award will come straight out of their personal assets.

Make sure bosses and other decision-makers understand that just one discriminatory comment, if serious enough, can start a lawsuit.

Recent case: Sandy Nicholson, who is black, worked for a temporary staffing agency and was supervised by a part-time employee, Ari Alexenburg. Nicholson claimed Alexenburg left a message on her home answering machine in which he twice referred to her as a “f_____g n____r.”

After she was fired, Nicholson sued the temp agency—and also sued Alexenburg personally. She alleged that Alexenburg’s voice message created a racially hostile work environment and demonstrated he was biased on the basis of race.

The court let her claims against Alexenburg go forward under three laws.

First, it concluded that the slur might violate Section 1981 of the Civil Rights Act, a piece of federal legislation passed shortly after the Civil War that gives black people the same right to contract as all others. Courts have consistently found that individuals can be liable for discrimination in contracts under Section 1981, and that discrimination can be shown by clear evidence of racial bias, including racial slurs.

Next, the court considered liability under the New York State Human Rights Law, which prohibits employers from discriminating on the basis of race, creed, color or sexual orientation. That law specifically says that individuals who aid and abet their employer’s discrimination by participating in that discrimination can be held personally liable. Leaving a racially charged message on an answering machine may well be viewed by a jury as participating in discriminatory conduct.

Finally, the court said that New York City’s Human Rights Law provides similar protection against racial discrimination, as well as personal liability for perpetrators of discrimination.

A jury will decide if Nicholson was a victim under any or all of the laws. (Nicholson v. The Staffing Authority, et al., No. 10-Civ-2332, SD NY, 2011)

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