Tuesday, June 23, 2015

Just because lone acts of harassment aren’t always actionable doesn’t mean you should ignore them

By now, you’ve likely heard of the furor over the Confederate flag following the horrific church massacre in Charleston, South Carolina. You haven’t? Well, watch this, from Last Week Tonight with John Oliver, and then let’s talk.

What are you to do if you have employees who like to display the Confederate flag at your workplace (think belt buckles, or do-rags, or maybe even small flags, or pictures thereof, in offices or cubicles)? Do you: a) permit it because solitary acts of harassment that are overtly severe or offensive likely are not actionable under Title VII; or b) prohibit it because it might make your African-American employees uncomfortable, or worse, offend them (heck, even South Carolina and Wal-Mart have relented on the issue)?

If we’re talking about a Confederate flag (or flags) as part of a deeper pattern of harassment, which includes other, more overt, acts, like nooses, monkeys, and racist language (like in this case), then it’s a no-brainer. You investigate, fire the offending employee(s), and institute some serious, heavy duty anti-harassment training. If you think you should do anything else, we need to have a serious talk.

But, if we’re talking just about a Confederate flag, without anything more, what are you to do? Ban, or not ban? 

I’m not suggesting you need a “no Confederate flag” policy, but, if you see, or learn of, an employee displaying this charged symbol, I suggest that you require its removal. You would not permit an employee to display a Nazi flag because of its very clear anti-Jewish meaning. For many African-Americans, the Confederate flag holds the same meaning. So, because you want a harmonious and inclusive workplace, you do the right thing, even if doing the wrong thing may not necessarily be illegal.

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