Watch out for overt harassment, but don’t sweat isolated–possibly misinterpreted–comments
While you should certainly discourage workplace comments that could be misconstrued as hostile, don’t panic if you learn an insensitive supervisor said something stupid. Unless the remarks were out-and-out racist, chances are they won’t be the basis for a hostile environment racial harassment lawsuit.
Advice: If someone complains about questionable comments, caution the alleged offender about the potential for harassment. Remind him or her that double-entendres and jokes can be just as dangerous as obvious racism.
Recent case: Latrice, who is black, worked for BCBG Max Azria as a manager of the fashion retailer’s store on Madison Avenue in Manhattan. Her supervisor was of mixed white and black parentage. Latrice claimed that a co-worker told her that the supervisor thought Latrice did not look “Madison Avenue,” was lazy, overpaid and failing at her job.
On another occasion, Latrice recounted that her boss asked her what it was like being a black woman in New York. Latrice had recently moved to the East Coast from California. In addition, Latrice said her boss referred to her as “sistah.” Finally, she claimed she heard her supervisor declare that she needed to hire some blonde employees to diversify the staff and better reflect the company’s customer base.
Eventually, Latrice was fired for poor attendance, poor customer service and violating company rules on behavior and dress.
Latrice sued, alleging that she had been forced to work in a racially hostile environment.
BCBG Max Azria attempted to explain each allegedly hostile comment or incident. It first said that it did have a vision of the look it associated with Madison Avenue. That vision, however, had noting to do with race, and everything to do with presenting oneself as polished and professional.
It gave specific examples of what it considered unprofessional behavior and dress and explained that Latrice had been disciplined for each violation. It said she was repeatedly warned that she had to cover visible tattoos and that it was inappropriate to curse or use her personal cellphone when customers were in the store.
The supervisor also said she didn’t remember ever calling Latrice “sistah.” She explained that the comment about being a black woman in New York was made in the context of discussing Latrice’s recent relocation. Finally, she explained that she was trying to diversify the staff to better reflect customers. The staff was entirely Latino and black until it hired two white employees (one was blonde), but also black, Hispanic and Asian women.
The court accepted the company’s explanations and didn’t see the incidents as racially hostile. It said there was no hostile work environment based on the four comments and incidents. (Shepherd v. BCBG Max Azria, No. 11-CIV-7634, SD NY, 2012)
Final note: The court also pointed out that Latrice hadn’t complained about anything until she began receiving disciplinary notices for her own poor performance. Plus, BCBG Max Azria tracked her work deficiencies over a long period of time, giving her plenty of opportunities to fix problems. For example, it told her twice to cover her tattoos and concluded her refusal to do so was really insubordination.
