When slur was an isolated incident, discipline, warn not to repeat—and move on
Sometimes people—including supervisors—say or do stupid and offensive things. But an employer doesn’t always have to terminate the offending employee. Imposing discipline designed to prevent a recurrence may be the best approach.
Afterward, monitor the situation to make sure no retaliation occurs.
Recent case: Kevin is of Asian origin and worked as a police officer. His supervisor at the time is white. One day, the supervisor squinted his eyes and used a mock Asian accent while speaking to another Asian-American officer in front of Kevin.
That officer filed a complaint with the police department. Kevin joined him, providing his collaborating account of the incident.
The police department investigated and placed the white supervisor on a one-week suspension. The supervisor also apologized to both Asian officers, explaining he didn’t mean to offend anyone.
Neither Kevin nor the other officer complained about any further slurs or comments.
Then Kevin sued, alleging he hadn’t been offered a promotion and that the same white supervisor had given him a less-than-stellar performance review. Kevin argued he had been discriminated against because of his Asian origin. But he had no evidence to back that up other than the original slur incident.
The court tossed out the case, noting that a single slur, even if highly offensive, wasn’t enough to create a hostile work environment and taint every otherwise normal workplace interaction ever after. (Yoo v. City of San Fernando, Court of Appeal of California, 2018)
During review, don’t ignore harassment claim
If, during a review, an employee blames recent poor performance on some sort of harassment, be sure to thoroughly investigate. Reason: If employees fail to report harassment internally, they may be barred from suing for harassment later. But if they do report it and you do nothing, then you lose that defense.
Recent case: Ruth has had a hearing disability since she was a child. She immigrated to the United States from Ecuador, learned English and earned bachelor’s and master’s degrees in social work.
She began a job as a bilingual clinician at a social services provider in the Bronx. It had a harassment and discrimination policy that provided several ways to report harassment to HR. Workers received yearly training on how to report harassment.
Ruth’s job required her to attend weekly staff meetings. Because of her hearing impairment, she always sat at the front so she could hear her supervisor better. But he frequently berated her for her inability to hear well, calling her deaf and sometimes calling her stupid. This frequently brought her to tears.
However, Ruth never reported the disability harassment to HR.
Then, following a performance evaluation that criticized her work, she wrote a rebuttal to the review that raised her supervisor’s disability harassment. No one investigated her claim.
Then Ruth sued for disability harassment. A jury awarded her damages for her mental suffering, plus punitive damages. The employer asked the judge to throw out the punitive damages because Ruth hadn’t complained.
The judge refused, reasoning that the employer wasn’t entitled to the non-reporting defense because it hadn’t investigated the allegations when she did raise the supervisor’s harassment during her performance review rebuttal. While she hadn’t used the formal process, she had brought it to management’s attention. (Duarte v. St. Barnabas Hospital, SD NY, 2018)