1. FEATURE STORY: FACED WITH A RACIALLY HOSTILE ENVIRONMENT? DON'T TURN YOUR BACK ON CONTINUING COMPLAINTS
When a racially hostile environment exists, there is no easy fix. A company learned the hard way that having a harassment policy, holding sensitivity training, and doling out discipline were not enough to escape liability under Title VII for racial harassment. Read on to learn from its mistakes.
Background: Back in 2006, the U.S. Supreme Court ruled in Ash, et al. v. Tyson Foods that the use of the term "boy," without any racial modifiers, could be evidence of discrimination, depending on context, inflection, tone of voice, local custom, historical factors, or other factors. In the current case, white co-workers' references to two African-American employees as "boy," "hey boy," and "damn it boy" were found to be racially hostile considering the totality of the circumstances.
The two African-American employees had made numerous complaints over the course of several years regarding their co-workers' "boy" references and other forms of racial harassment, including racial graffiti and nooses in the workplace.
The co-workers claimed that they didn't mean anything by the term and would continue to use it. The two employees' complaints inspired their co-workers to use "boy" with greater frequency.
During sensitivity training in which it was explained that the term "boy" was a racial epithet used during slavery, several of the white employees voiced resistance to the idea that it was wrong to refer to African-American men as "boy." One of the employees said that it was a "southern thing" and that he would continue to use the word, regardless of company policy.
A district court awarded the employees $350,000 each in compensatory damages. It found that the continued "boy" references were "clearly racially motivated...in the face of the [employees'] requests not to be called those terms and after the racial implications of those terms had been clearly explained at sensitivity training."
In an atmosphere in which flyers depicting one of the black employees as "the boy," nooses, and various other forms of "boy" graffiti were absent, the court might have ruled that the employees were overreacting when their co-workers slipped the word "boy" into the conversation in more subtle ways. But in a work environment that included nooses, offensive flyers, "boy" graffiti, and other frankly racist behavior, the court concluded that the employees "were being baited by white employees in additional, subtle ways."
Court: After reviewing the totality of the circumstances, it was "unlikely" that, after the employees "had spent years complaining about the terms, a white employee could end a sentence to either plaintiff with 'damn it boy' and mean no offense." The decision was affirmed on appeal. (Bailey v. USF Holland, Inc., 6th Cir., No. 07-5304, 2008)
Where This Employer Went Wrong
The company unsuccessfully argued that it took "reasonable, prompt, and appropriate corrective action" in response to the employees' complaints.
Action: It had a reasonable harassment policy. Problem: The persistent harassment the employees experienced over an extended period of time showed that the policy was not consistently enforced. "A harassment policy itself means nothing without enforcement," said the district court.
Action: It conducted employee meetings in regard to the complaints. Problem: They were ineffective. The white co-workers said they did not consider their use of "boy" to be offensive and insisted they would continue to use it.
Action: It fired the employee responsible for the graffiti. Problem #1: He was reinstated after pursuing a grievance through the union and was not otherwise disciplined. Problem #2: The company was able to stop the graffiti only after it installed security cameras, an act it did not take until after the employees filed suit.
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