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When facing a bias lawsuit, avoid these three dumb defenses

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in Discrimination and Harassment,Human Resources

Your organization can defend itself against race discrimination lawsuits in many ways, but a recent ruling illustrates how three excuses will flop in court:

  1. "He acts like that with everyone; that's just the way he is."
  2. "No African-Americans were around to hear his comments, so no harm was done."
  3. "We have lots of African-Americans on staff, so we couldn't possibly discriminate."

None of those defenses will stand up in court. Courts will look at the entire nature of your workplace to consider whether harassment is severe or pervasive.

So tell managers to crack down on "equal-opportunity harassers": They will hurt, not help, your cause in court. And remind managers that racially offensive remarks made in a joking manner can become evidence in court, even if they're made behind workers' backs.

Recent case: A restaurant's owner and its general manager referred to African-American hostesses as "dark, light and semisweet chocolate" and spoke to them in racial slang. The hostesses said they complained, but their protests were routinely dismissed or mocked.

The hostesses sued, claiming a racially hostile work environment. The restaurant's three defenses?

  1. The two men were abusive to all employees, not just those hostesses, so this couldn't equal harassment.
  2. The comments were said in a joking manner and, oftentimes, when the hostesses weren't around.
  3. The restaurant has a diverse work force, so it can't be discriminatory.

Skewed logic on all three, the court said, allowing the case to proceed to trial. The court said the men's employee-wide abuse doesn't excuse their harassment of those women. Rather, it added to "an overall hostile environment."

Also, just because the protected-group member isn't present to hear a discriminatory remark, "will not render the comment irrelevant," the court said. A diverse work force doesn't give you a "free pass" to discriminate. (Boggs v. Die Fliedermaus LLP, 99 Civ. 2451, S.D.N.Y., 2003)

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