Legal-Ease By Janette S. Levey, Esq.

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Harmless Joke or Harassment?

Last month, the EEOC announced that it settled three lawsuits with Albertson’s, a large grocery store chain that allegedly engaged in race, color and national origin discrimination and retaliation, at a distribution center in Aurora, Colorado. According to the EEOC, 168 employees were subjected to racist and anti-Semitic derogatory epithets, slurs and graffiti. In one situation an African-American employee suffered a broken leg caused by a piece of equipment, and was allegedly left lying on the warehouse floor for 30 minutes by a white supervisor, who told him “that’s what you get for being black”! Albertson’s agreed to a $8.9 million settlement that will be divided among the 168 employees, who allegedly suffered discriminatory and harassing conduct from the time period of 1995 and 2008. OK, you may be thinking, that’s unfortunate; workplace harassment and discrimination happens all the time. Why talk about this case, and what does this have to do with me and with my job? The short answer is: A lot, so please read on! We all know that racism and related discrimination and conduct have likely existed from Day One. Aside from the discrimination being so blatant in the Albertson cases, here is what struck me about this situation: Supervisors and other employees were aware of the conduct, and yet it was allowed to happen over a period of thirteen years. How in this day and age does something like that happen? Are there not laws against this type of conduct? Are people not aware that this type of conduct is not only wrong, but illegal? All we have to do is read or listen to the news and we know that multimillion dollar discrimination lawsuits and verdicts or settlements abound. Why would someone engage in this type of conduct today? Could you somehow find yourself in such a situation? While we would like to believe that it would not happen to us, we unfortunately cannot be so sure. Let’s use another more generic example to take a look at what seems to have been occurring beneath the surface: George is an employee of minority background. George is in a meeting with three other employees. In order to add some levity, Michael makes a racial slur to George, and does so in a joking tone. The other two employees squirm a bit but say nothing. George is offended by the remark but does not want to rock the boat, so he says nothing to Michael and he does not report the comment. Now, you may be thinking that this is an isolated and harmless incident, but is it really? Since no one said anything to Michael and no one reported the comment, is Michael more or less likely to refrain from such comments in the future? Suppose, as is often the case, Michael continues making such comments, not only to George, but to other employees? What if Michael decides he is not content with mere comments and steps up the behavior, to say, sending emails with racial slurs? I am sure you are beginning to get the picture. Eventually someone will complain, and maybe even file an EEOC or state complaint or even a lawsuit. Now what happens? Let’s go back to the Albertson’s case: Albertson’s now must pay $8.9 million to the complainants. The obvious consequence when discriminatory or harassing behavior is allowed to continue unchecked for any period of time is that the company can be subjected to extraordinary liability in the form of having to pay multimillion dollar settlements. But, is that all that results from failure to report or address discriminatory and harassing behavior in the workplace? As you have probably guessed, the answer is a resounding “NO!”

Legal-Ease By Janette S. Levey, Esq.

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Harmless Joke or Harassment? ...Continued

First, let’s return to Michael in our second example. Depending on how far Michael takes his behavior, Michael could not only lose his job, but Michael could even find himself individually the subject of a harassment or discrimina-tion lawsuit along with his employer. Suppose you find yourself in a meeting with someone like Michael and he is your friend and you hear him make the racial slur. You do not really believe he is a bigot. You truly believe he was try-ing to be funny. You do not want to get him in trouble by reporting him for making the one comment. Yes, Michael may be subject to some kind of discipline for making the racial slur. In our example though, Michael, like many employ-ees who engage in such behavior, will likely continue and escalate the discriminatory and harassing behavior if it is not addressed early. Is it better for Michael to be allowed to continue and face a termination and maybe even an expensive lawsuit? If Michael does get sued, what do his future job prospects look like at that point? OK, I am sure you get the idea. If you say and do nothing upon hearing the racial slur from Michael, you probably are not doing him a favor. If that’s not upsetting enough to contemplate, let’s go back to our real example. What do you think the conse-quences were for employees at Albertson’s who may have witnessed some of the conduct complained of and kept quiet? Do you think the complainants would have kept quiet about who the witnesses were? Employers cannot afford to promote a culture that tolerates any type of harassment or discrimination, and that is why most harassment policies today often include disciplinary measures for employees who witness but do not report such behavior. When employ-ees keep quiet about such behavior, they may think they are avoiding trouble, but often they unwittingly contribute to a culture that tolerates discrimination and harassment, and, as the Albertson case and our generic example make so painfully obvious, such a culture creates a breeding ground for multi-million dollar lawsuits, job terminations, and un-told suffering by many others. Wait, a minute, you may be saying, I understand that if I report my colleague s/he will be in less trouble now than s/he will be if I say nothing and the behavior continues, but what if the offending person is my boss or someone high up in the company? If I report that behavior, then that person can make my life difficult. Maybe I will even lose my job. Those are valid concerns and both this company’s policies and the law take that into consideration. Most of the time you can report such behavior in complete confidence. Also, retaliation for reporting discriminatory or harassing conduct is illegal and itself will lead to significant liability for anyone who engages in or allows retaliatory conduct. The good news is that you can avoid such situations, relatively easily, by reporting any behavior that you feel may violate the company’s harassment and discrimination policies. Now some of you may be saying, well, I don’t want to risk suffering any retribution for reporting someone’s bad behavior. Fortunately, Joulé has a zero-tolerance policy for all such behaviors and makes every active effort to ensure that in the unlikely event someone either suffers from or witnesses any such behavior, that s/he will not suffer any negative consequences by reporting it. So please, if you think you may have witnessed some type of discriminatory or harassing behavior, err on the side of caution!

By Janette S. Levey, Esq.