Overview: Both Title VII and various state and local laws prohibit employee discrimination and harassment based on an individual's race or color. Employers should understand that racial harassment may involve the use of demeaning names or stereotypes, offensive jokes, graphics and cartoon, remarks about the Ku Klux Klan, slavery or the displaying of nooses and other offensive gestures or comments.
To prevent racial harassment, an employer should have a policy that strictly prohibits harassment based on race or color. Further, an employer should have a system in place so that complaints of race harassment can be easily made by employees and quickly responded to by the employer.
Further, all employees and supervisors should be trained on how to handle instances of racial harassment and to immediately report them in order to create a more tolerant and diverse workplace in which all employees are valued and respected regardless of race or color.
Trends: In Vance v. Ball State University, 570 U.S. (2013), the Supreme Court issued a critical decision which makes it more difficult for employees to prove that an employer is vicariously liable for a supervisor’s discriminatory or harassing conduct. Specifically, the Court held that a supervisor must be someone with the direct power and authority to take tangible employment actions against an employee. This issue is of primary importance when determining whether an employer is vicariously liable for a supervisor's actions in cases of harassment. Under the current law, if the harasser is a supervisor, the employer is automatically vicariously liable for the supervisor's actions. If the harasser is not a supervisor, the plaintiff must prove that the employer was negligent and that the employer knew or should have known of the harassment in order to be liable. This is a much higher burden to meet. .
Author: Beth P. Zoller, JD, Legal Editor
XpertHR's Financial Services Resource Center for HR helps financial services employers handle their most challenging employment issues by bringing relevant resources together in one place for easy access.
In a development that highlights the importance of promoting fair employment practices, the clothing and accessories retailer Wet Seal has agreed to settle a race discrimination class action lawsuit for $7.5 million.
The transportation and trucking industry - which has traditionally employed mostly white males - has long been hit with discrimination claims based on race, sex, disability and other protected classes. A recent jury award demonstrates that companies will pay a hefty price for allowing a racially charged atmosphere and failing to respond to race discrimination and harassment complaints.
With the Supreme Court's first oral arguments of 2013 underway this week, there are several employment-related cases of note still awaiting decisions, including one that asks what makes someone a "supervisor" under Title VII of the Civil Rights Act. The blockbuster gay marriage cases also are sure to have HR implications.
The EEOC is pursuing non-traditional harassment claims such as those by males against males and claims based on national origin harassment, sexual violence and abuse. Further, the EEOC has indicated that farm workers are particularly vulnerable because they often work long hours in isolated working conditions and lack familiarity with legal protections and access to the legal system.
Every employer should take the necessary steps to ensure that its workplace is free from inappropriate racial remarks and to respond appopriately if an employee is accused of making racist comments. This How To explains how an employer should deal with an employee making racist comments.
Defending a case of race discrimination or harassment is disruptive and expensive, even if the employer is ultimately found not to be liable. This How To provides employers with guidance on a well-crafted, rigorously enforced antidiscrimination policy, ongoing training and policy review, and a top-to-bottom commitment to creating and maintaining a workplace free from discrimination, which can offer substantial protection against race discrimination claims.
Complaints of race discrimination can lead to litigation and financial liability for an employer, in addition to a decrease in employee morale, loss of productivity and negative publicity in the community. When faced with a complaint of race discrimination, how an employer handles the complaint can affect not only its resolution, but also has the potential to prevent additional claims from occurring in the future.
HR guidance on preventing and responding to workplace racial harassment, including implementing a policy, providing employees and supervisors with training and effectively responding to complaints.