When employees complain about being harassed while at work, employers often wonder how to stop the offending behavior. One thing is certain—simply ordering employees to stop doing what they allegedly are doing isn’t enough.
Employers can escape liability for a hostile work environment only if they have a solid anti-harassment policy and use it to actually stop the harassment.
Employers that conduct merely “sensitivity training”—but don’t follow through by punishing employees who continue to harass—will be sued. As the following case shows, simply paying lip service to an anti-harassment policy won’t block a lawsuit.
Recent case: Bobby Bailey and Robert Smith, who are both black, worked for USF Holland as dockworkers and drivers. They complained often to managers and supervisors that their co-workers insisted on addressing them as “boys.” One direct supervisor also called Bailey “boy” and insisted Bailey shouldn’t take the name-calling so seriously, adding, “Damn it, boy,” every time Bailey protested.
Then nooses and offensive cartoons labeling black persons as “boys” started appearing around the workplace.
The men went to the terminal manager and asked for help. This prompted a visit from the HR vice president, who conducted a sensitivity-training seminar. The HR professional explained to the employees that the term “boy” was a racial epithet used during slavery. Unfortunately, several white employees disagreed, and one claimed using the term was just a “southern thing.” That employee informed that he would continue to use the term, even if he thought that meant management was “probably going to have to fire” him someday.
The taunting and name-calling continued, and the company removed the offensive graffiti from time to time. Sometimes, nooses also appeared. The men continued to complain, and eventually the company investigated what was going on.
But the lawyer who ran the investigation told management and employees that none of the employees who referred to Bailey and Smith as “boys” meant any harm or intended to hurt their feelings. Needless to say, the name-calling and graffiti continued.
Nothing changed until a year later when the men sued, alleging a hostile work environment. That’s when the company installed 25 cameras in the dock and yard areas, effectively stopping further graffiti.
Too late. A jury awarded each man $350,000 for emotional suffering.
The company appealed, arguing that the environment hadn’t been sufficiently severe to warrant such a large award. But the 6th Circuit Court of Appeals disagreed. It said that the environment was objectively hostile and the company hadn’t used reasonable care to prevent or fix the problem. (Bailey, et al., v. USF Holland, No. 07-5304, 6th Cir., 2008)
Final note: You must take immediate and definitive action against those who refuse to buy into your anti-harassment policies. Allowing co-workers to announce they will ignore company harassment policies is lunacy—and it will result in a lawsuit. Imagine how the co-worker’s defiant stance on using a racial epithet played with the jury.
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