Employers are responsible if they know or have reason to know about a hostile work environment created by employees and do nothing to fix it.
As a practical matter, what employers hear and see may be just the tip of the iceberg. Smart employers immediately attempt to get the whole picture and then correct the harassing behavior.
Take, for example, name-calling that smacks of racism or sexism. Your best bet is to speak with everyone involved to find out what’s really happening. Seek out eyewitnesses and get their accounts. Ask open-ended questions—“Have you heard anything else that you think may be offensive?”—to get an idea of the overall atmosphere.
Review the company harassment and nondiscrimination policy, and remind everyone harassment won’t be tolerated.
If you conclude the co-worker did in fact use offensive terms, discipline the employee.
Recent case: Walter Smith, who is biracial, complained when a co-worker referred to him as a “boy.” Smith’s supervisor told the co-worker to stop but didn’t take the matter any further. Smith didn’t go to the HR office right away, but another co-worker did.
HR interviewed everyone and found out that the name-caller had also called Smith a “bitch.” The company fired the name-caller. In addition, it put the supervisor on an improvement plan for failing to report the problem up the chain of command.
When Smith sued, he didn’t get far. The court said the company did everything it could to fix a potentially hostile work environment—and was successful in its efforts. (Smith v. CA Inc., No. 8:07-CV-78-30, MD FL, 2008)
Final note: Make complying with harassment and discrimination policies part of the process. Remind managers they must report any hint of harassment.
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