Tuesday, August 20, 2013

Why you should take all harassment complaints seriously

Today I am going to discuss two racial harassment cases decided by the same court, on the same day, but with different results.
  • In Paasewe v. Action Group, Inc. (6th Cir. 7/17/13), the plaintiff alleged that he was called “boy,” threatened because he wore a Barack Obama t-shirt, and was demeaned because he was a black man driving a nice car. The court concluded that a jury question existed on whether Paasewe’s allegations gave rise to a racially hostile work environment.
  • In Nicholson v. City of Clarksville (6th Cir. 7/17/13), the plaintiff alleged that co-workers repeated used the n-word and other offensive phrases to describe African-Americans, in addition to incidents of profanity directed at African-American employees. The court concluded that no jury could reasonably concluded that Nicholson had been subjected to a racially hostile work environment, and affirmed the trial court’s dismissal of his harassment claim.
You can read each of these cases for yourself, and come up with good arguments for, and against, the employer in each. The point I want to make, however, runs deeper than any analysis of the legal merits (or lack thereof) of each case. Deciding whether a workplace is sufficiently “hostile” to support a harassment claim under the civil rights laws is highly subjective. One judge’s or jury’s illegal hostile environment is another’s workplace triviality.
An employer’s primary goal should not be to win these cases on their merits when filed, but to prevent them from being filed in the first place. How does a business accomplish this goal?
  • Have a written anti-harassment policy.
  • Provide periodic anti-harassment training.
  • Foster open channels of communication between employees and management.
  • Take all workplace complaints seriously by investigating each (no matter how trivial it may seem), and by imposing effective remedial action if necessary.
  • Maintain a diverse workforce.
Cherry picking only those complaints that you believe are serious or legitimate opens up to scrutiny those complaints that are buried or ignored, which, in the hands of the right plaintiff could prove to be an expensive omission.