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
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This How To details the steps a prudent employer should take to handle an employee making racist comments.
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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.