Move cautiously when dealing with an employee who complains about harassment and discrimination—especially if the complaint involves a supervisor who now wants to terminate him.
Unless you have a pre-existing paper trail showingbefore the complaint, going back to create one is dangerous.
Recent case: Contonius, who is black, was a truck driver who hauled asphalt. He was fired for allegedly refusing to work about four weeks after he complained about racial harassment. He complained to the EEOC, which concluded his case was good enough to take to court on his behalf.
In sworn testimony, Contonius said that from the time he was hired until he was fired a year later, he heard daily racist taunts. He said managers and co-workers alike frequently used the “N” word, in addition to terms like “lawn jockey,” “coon” and “tar baby” when referring to blacks. Others referred to the president as “Obammy.” A manager allegedly announced that if his daughter came home with a black man, he would kill them both.
If all that wasn’t bad enough, other employees testified about the use of the phrase “family tree,” a place on the property where “they would hang black people.” Nooses were commonly seen hanging from rafters.
According to Contonius, he finally complained to a manager about the racial hostility about four weeks before he was terminated.
Contonius was fired shortly after he said he became ill while driving a truck full of asphalt; he had returned to the garage without completing the delivery. The company claimed Contonius never told anyone he was sick but simply refused to make the delivery. It said he was terminated for this and other allegedly poor work.
The EEOC, however, offered testimony from other employees. One claimed that she had been told, after the fact, to create paper records showing “a pattern of laziness.” When the court looked at those records, it found that the discipline didn’t match up with other payroll and attendance records, making them highly suspect.
The EEOC also pointed out that white employees apparently got frequent second chances that black employees did not. For example, even though the company had a strict drug testing policy that required termination for a positive test result, a white worker hadn’t been fired when he failed a test.
Taken together, the court concluded there was enough evidence for a trial.
A jury will decide whether Contonius was discriminated against on account of his race and retaliated against for complaining about a racially hostile environment. (EEOC v. A.C. Widenhouse, No. 1:11-CV-498, MD NC, 2012)
Final note: This is the sort of case that often leaves HR professionals shaking their heads. This level of hostility still happens all too frequently—and it could be occurring in your workplace.
If no one conducts unannounced visits and actually talks with employees, it may be happening out of your sight and earshot. Don’t take the risk. Check for graffiti and other telltale signs, and include examples of inappropriate, harassing behavior in employee training. Encourage employees to report incidents confidentially.
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