Tell trainers: You have an obligation to report harassment or discrimination you witness

Employers that have actual knowledge that a hostile work environment exists can’t get off the hook by claiming a worker failed to use an established system for reporting harassment. Knowledge of a hostile environment doesn’t have to come from a supervisor or executive.

Other employees such as instructors may also have a duty to report harassment to management. The instructor’s knowledge may be imputed to the employer, making the employer responsible and liable for the hostile environment.

Recent case: Shauntay, a light-skinned black woman of Caribbean decent, was a probationary train operator for the New York Transit Authority. In training during probation, she—like all other new employees—learned about the Transit Authority’s handbook policies. Among those were rules requiring employees to maintain a respectful workplace without arguments, fighting or other disruptive behavior. New employees were warned that not following that directive could result in termination.

The handbook also explained how to report various forms of discrimination and harassment.

During the five months Shauntay was in the training program, she claimed that another trainee, a dark-skinned black woman, regularly harassed her. She said the co-worker openly called her “fake,” “phony,” “oreo,” “dirty blonde,” “uppity,” “dumb blonde” and other names—all in front of a classroom full of other trainees and instructors.

Finally, Shauntay and the co-worker got into a heated argument and had to be separated. Shauntay for the first time reported the harassing conduct to management and HR. The authority investigated the argument and determined that both trainees had violated the rules against disrespect and lack of civility. Both women were fired.

Shauntay sued, alleging racial harassment and a racially hostile work environment.

The authority tried to argue that Shauntay failed to use the internal complaint process, which she knew about since it was covered in her initial handbook training. Therefore, the authority said, it couldn’t be held liable for co-worker harassment that it didn’t know about.

But the court concluded that the authority knew or should have known about the racial harassment because it occurred in the classroom in front of the company’s trainers. They had a duty to report the conduct to HR or management even if they were not supervisors. (Watkins v. Transit Authority, SD NY, 2018)

Discrimination within minority groups: Yes, it’s illegal

In this case, the black female harasser seems to have targeted Shauntay based on the light color of her skin and her national origins—Caribbean, rather than African-American.

The EEOC has extensive guidance on so-called color discrimination and harassment. In fact, it considers discrimination on the basis of color to be part and parcel of race discrimination.

The EEOC defines race discrimination as “treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features).” It states that color discrimination “can occur between persons of different races or ethnicities, or even between persons of the same race or ethnicity. For example, an African American employer violates Title VII if he refuses to hire other African Americans whose skin is either darker or lighter than his own.”