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‘How may I insult you?’ Rude salespeople ignite bias suits

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources

by Mindy Chapman, Esq.

You’d think the sight of customers paying retail prices with real green money would be a sight for a salesperson’s sore eyes. That apparently wasn’t the case at a Dillard’s department store in Kansas City, which is now facing a messy lawsuit after a saleswoman shunned a customer.

When a black couple asked to see a watch in a glass case, the saleswoman said “No” and kept her arms folded. Finally, another salesperson stepped in to help. The rude saleswoman glared at the couple, questioned how they’d pay for the watch and muttered the “n” word under her breath.

The other salesperson apologized for the woman’s behavior and informed the couple this wasn’t the first time that the employee had demonstrated such racial hostility. After the couple left the goods behind and filed suit, the court informed Dillard’s it had purchased itself a jury trial. (Green v. Dillard’s Inc., 8th Cir., No. 06-1918)

What this new ruling means to you

The court let the case go to trial even though it ruled that there was no evidence of discriminatory policies at Dillard’s or specific discriminatory acts by managers. Why? Discrimination is not the only legal cause of action in such cases. Negligence can also be a factor.

The court said the couple could support a negligence claim if Dillard’s “knew or should have known about (the saleswoman’s) racially hostile propensities and not only failed to take reasonable measures to stop it, but continued to place her on the sales floor and authorize her to interact with customers.”

Lessons learned ... without going to court

This case offers several important lessons for HR professionals, including:

  • Pay close attention to an employee’s employment record. Dillard’s was aware that the saleswoman had held a high-paying job at AT&T and then accepted an unskilled position at Kmart, where she was laid off during the holiday season. Dillard’s needed to ask, “What’s wrong with this picture?”
  • Have reporting and investigation procedures to remedy discrimination toward customers. The court noted that Dillard’s failed to have any such procedures in place.
  • Keep accurate records of customers’ complaints. The court recognized that Dillard’s failed to keep any records or look at trends. This is where a good “hotline” service that takes in complaints and records trends will help an organization uncover potential liability and identify training needs.
  • Train managers to take prompt, effective action. If managers see, hear or hear about discriminatory or harassing conduct, they’re on notice and must immediately report it.
  • Terminate employees who don’t get it. We all understand the concept of disciplining an employee for inappropriate conduct. However, if employees don’t understand that it is against the law to discriminate against customers, the courts will inflict their own brand of discipline on the employer with bad press, costly litigation and the possibility of an EEOC consent decree that will choke the organization for years.

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Mindy Chapman is an attorney and president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial.  

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