Two recent cases on racial, religious and ethnic origin harassment speak to how far we have come and how far we have yet to go.
In May v. Chrysler Group, a U.S. Court of Appeals case originating in Utah, there was very serious ethnic origin and religious (anti-Semitic) harassment over a prolonged period of time. This case demonstrates that serious racist threats and hatred still permeate some workplaces. The court found that the employer’s response was “shockingly thin as measured against the gravity” of the harassment. The decision is a good primer on an employer’s duty to respond to anonymous harassment and step up that response when initial efforts are unsuccessful.
In EEOC et al. v. Holmes & Holmes Indus., Inc., a decision from the United States District Court, also from Utah (what’s up Utah?), the few African American employees were barraged with repeated use of the “N” word. The employer argued it was not unwelcome, given the rap lyrics these employees listened to. The EEOC didn’t buy that argument and found that the undisputed allegations amounted to harassment as a matter of law. It also found the Faragher/Ellreth defense was not applicable because the employer’s harassment policy directed victims of harassment to complain directly to their supervisor, even when the supervisor was the harasser. This employer was also taken to task for failing to take disciplinary action against the harasser.
Lessons learned? While workplace harassment based on race, religion and ethnic origin is unfortunately not a thing of the past – courts will take it seriously and expect employers to have proper policies and practices in effect. Any notice of harassment should be rapidly and thoroughly investigated and reasonable action to prevent further harassment should be taken.