As Black History Month comes to a close, employers are reminded of the incredible contributions of African-Americans in our communities. It also sends a sad reminder that race discrimination and harassment still occurs in our workplaces.
Although sexual harassment has received much attention in the past year, claims of race discrimination and harassment have exceeded those of sexual harassment and discrimination. The federal Equal Employment Opportunity Commission recently released its statistics for the fiscal year that ended Sept. 30.
While retaliation remained the most filed claim, with 48.8 percent of all charges filed claiming retaliation, race discrimination/harassment was the second most filed claim at 33.9 percent, followed by disability (31.9 percent) and then sex (to include sexual harassment) at 30.4 percent. Equal pay was among the least filed claims at just 1.2 percent. Claimants can identify more than one basis for alleged employer activity; therefore, the total percentages exceed 100 percent.
Last year, the EEOC sued lease-to-own retailer Aaron’s Inc., alleging that company created a hostile work environment for black employees in its warehouse in New York. In a news release, the EEOC claims that the acts of mistreatment by Aaron’s employees included the regular and open use of slurs by managers at the warehouse.
The EEOC further claims that “African-American workers were also assigned more difficult tasks and generally treated worse than others at the warehouse.”
Employers must ensure that workers are free from harassment, to include racial slurs and discrimination in assignment.
The use of the “n” word cannot be tolerated in any workplace, and must be stopped. Even a single racial slur in the workplace could lead to an actionable claim of harassment.
Last year, the 3rd Circuit U.S. Court of Appeals determined that a single racial slur could lead to an actionable hostile work environment claim based on race.
In Castleberry v. STI Group, two African-American subcontractors working for an energy group claimed, among other things, that when working on a fence-removal project, a supervisor using a racial slur told them they would be fired if the job wasn’t done right. They were fired after complaining about the mistreatment.
The employees sued, claiming they were subjected to a hostile work environment, discriminated against and then retaliated against. The district court dismissed the case, claiming, in part, that the incidents did not rise to the level of a hostile work environment.
ut the court of appeals reversed, holding, “Here plaintiffs alleged that their supervisor used a racially charged slur in front of them and their non-African American coworkers. Within the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred). This constitutes severe conduct that could create a hostile work environment.”
The court further noted, “The parties dispute whether the supervisor’s single use of the ‘n word’ is adequately ‘severe’ and one isolated incident is sufficient to state a claim under that standard. Although the resolution of that question is context-specific, it is clear that one such instance can suffice to state a claim.”
Employers cannot allow there to be any double standards, to include permitting some employees to make comments to each other because they believe it is welcome or because the comments are made between the same race.
Employers also cannot tolerate music that includes inappropriate content, which may include racial slurs or hostile comments about women or violence.
In the course of conducting harassment training, employers should not limit the training to sexual harassment prevention, but should include all forms of illegal discrimination and harassment, including race.