Last week, the U.S. Supreme Court was asked to answer these questions:
Whether an employee’s exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact.
Whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable “mere utterances.”
These questions stem from Collier v. Dallas County Hosp. Dist. (5th Cir. 2020), which held that an African-American employee had failed to create a question of fact for a jury on his race-based hostile work environment claim based on his allegation that he had seen the one instance of the N-word scrawled on the wall of the hospital in which he worked (along with a pair of swastikas
While recognizing the offensiveness of the graffiti, the appellate court affirmed the dismissal of Collier’s harassment claim.
Though disturbing, the particular facts of this case … are insufficient to establish a hostile work environment under our precedent. For example, we have found that the oral utterance of the N-word and other racially derogatory terms, even in the presence of the plaintiff, may be insufficient to establish a hostile work environment. …
The conduct that Collier complains of was not physically threatening, was not directed at him (except for the nurse’s comment), and did not unreasonably interfere with his work performance. In fact, Collier admitted that the graffiti interfered with his work performance by only one percent. Moreover, Collier does not argue that he felt humiliated by the graffiti, nor would the record support such an assertion. Accordingly, on the record before us, Collier’s hostile-work-environment claim fails because it was not “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
We do not yet know if the Supreme Court will take up this issue, which remains split among the various appellate circuits. Regardless of your potential liability, however, if the N-word rears its head in your workplace, you have one, and only one, appropriate response. Stop it from happening again, period. Investigate and if you can determine the responsible party, terminate. If you can’t determine the responsible party, send a strong and clear message to all employees that such language and misconduct is not tolerated, and offenders will be terminated.
All employees have the right to work in an environment in which they feel safe and free from the risk of harm. That word creates the exact opposite environment, and should never be allowed. Hard stop.
I continue to shake my head at the callousness of employers during this pandemic. Consider this example from The Oregonian, which earns its spot as the 10th nominee for the Worst Employer of 2020.
A finance manager at a used car dealership in Portland was fired by his boss during a staff meeting for questioning the company’s alleged cover-up of a coronavirus cluster, a lawsuit claims.
McCrary contends his boss directed employees to conceal a COVID-19 outbreak to maintain business profits and customer visits to the showroom….
At least two workers tested positive and a general manager exhibited symptoms but refused to be tested, the lawsuit says. Two “significant others” of employees also tested positive, the suit says.…
His suit claims that Lapin didn’t require social distancing or take other safety measures at work in light of the coronavirus pandemic and had fired another sales representative who was worried in spring about coming into work.
The lawsuit further alleges that the owner fired McCrary in an “alcohol and drug-induced rage” during an all-staff meeting after McCrary had raised health and safety concerns following the outbreak, screaming, “Everyone, everyone Shawn is fired – get the (expletive) out of my company!”
McCrary’s lawsuit also quotes this text message the owner sent after the staff became aware of the positive cases: “Keep this down please. Don’t share this information with anyone since we do not want to scare away business.”
While the #MeToo movement has brought some high-profile results including the imprisonment of Harvey Weinstein and Bill Cosby, the reality is that in general there have been few consequences for harassers.
This is especially true for populations of employees especially vulnerable to sexual harassment, including low-wage workers in the retail and service industries. Looking at data from 1995 to 2016, the Equal Employment Opportunity Commission received more complaints of sexual harassment from the restaurant industry than from any other industry, according to Time. Retail employees, meanwhile, occupy the No. 2 spot in number of sexual harassment complaints filed.
According to digital media company Racked, what makes service workers vulnerable to sexual harassment includes low wages and complicated, ineffective complaint processes that rarely lead to any consequences. Further, harassers know they can prey on vulnerable workers who are often women or people of color because they can use these vulnerabilities against the person they’re harassing and take advantage of a power imbalance, according to Racked.
As rampant as sexual harassment is, offenders often get away with it and victims don’t believe their complaint will go anywhere. Meanwhile, HR may get the reputation of being more interested in protecting the company than protecting the victim.
Fifteen percent of employees have been sexually harassed according to “The State of Humanity at Work,” a spring 2020 report from software company Workhuman, which surveyed 2,613 full-time employees. But that number is probably higher given the sensitivity of the topic, the report noted. Of these people, 39 percent said they don’t trust their HR department. Only 47 percent of women and 66 percent of men who have been sexually harassed reported it.
“This mistrust is further manifested in low numbers of people reporting harassment. Changing these numbers is going to take work building up trust and showing commitment to listening and respect,” according to the report.
What employees can do after being sexually harassed
File a formal complaint: Despite employee concerns that HR will do nothing, filing a formal complaint is still a good idea.
If your company has a specific procedure for handling sexual harassment complaints, employees should follow it to the letter, taking note of every detail, like any time limits set out in that policy, advises law firm Allred, Maroko & Goldberg. In the case where a company has no formal procedure, an employee can start by reporting the harassment to their immediate supervisor, and, in the case where the supervisor is the one doing the harassing, report it to that supervisor’s manager. “It is important, particularly in hostile environment cases, to make sure that your company’s management knows of the harassment,” the law firm’s blog noted.
Keep records of everything: If an employee has any uncomfortable incident with their harasser, they can keep a log of times, dates and exactly what the person said or did for reference. They can also note witnesses who may be able to corroborate the incident. When they have digital evidence like texts, emails or instant messages to screenshot, that is further evidence to bring to HR with their complaint.
Being thorough and detailed is important here. The more details and evidence someone has, the better.
Further steps an employee can take: Sometimes a harassment victim is unable to resolve your harassment complaint by using your employer’s internal procedures, the law firm blog noted. If they still want to pursue the complaint, they can turn to the Equal Employment Opportunity Commission or their state’s human rights or civil rights enforcement agency next.
This can lead to several outcomes. The agency may decide not to proceed with the complaint but issue the victim a “right to sue” notice, allowing them to bring the case to court. The agency may also choose to file their own lawsuit against the employer.
A lawsuit is not the route an employer wants to take. That’s one reason it’s important to HR to step up and take sexual harassment cases more seriously.
“HR is like the CIA — when we do the right thing (like getting rid of a harasser) employees might never know about it, but when we screw up (like protecting a harasser), everyone knows,” said Kate Bischoff, an employment attorney at tHRive Law & Consulting LLC. This only magnifies the reputation of HR as a department that ignores critical culture issues like sexual harassment.
If this is the reputation of HR — and at times it is the reputation HR departments have earned, Bischoff said — then HR professionals must work harder to build trust with employees. They can get to know employees, ask them how they’re doing and find out what HR can do to help with any issues they’re having.
Building these relationships may help people feel like HR is trustworthy and will take sexual harassment seriously.
HR’s role in building employee trust
“The best way to build a connection with employees is to create a human-centered culture. Leaders can do this by keeping the line of communication open and providing frequent check-ins,” Bischoff said. “[And] good HR professionals build trust and take action to prevent and stop harassment.”
The report stressed the importance of a “human workplace,” defined as an environment where people are allowed to be human, make mistakes and treat each other with empathy, Bischoff said. “If we see each other as humans, we’re more likely to speak up when things are not right, when there are problems, and when we believe we’ve been harassed,” she added.
Not addressing sexual harassment has a clear negative impact on employees, but it can also adversely affect employers through turnover. Of the 21 percent of employees who are actively looking for a new job, 33 percent have been sexually harassed at work, according to the survey. This number is probably higher, the survey stated.
The “lawyerly” reason organizations should take sexual harassment more seriously is because of the risks they face due to bad press, lawsuits, charges of discrimination and the costs of settlement. But there’s much more to consider than reputational and financial damage. “Good organizations hear the lawyerly response more clearly, but great organizations hear the human response more clearly,” Bischoff said.
When sexual harassment occurs, a company is not providing an environment for employees in which they can do their best work and voice their concerns, she said. The company is treating their employees poorly, and it’s not providing the best services or products to its clients and customers as well.
The Workhuman report found that of the women who reported being sexually harassed, 29 percent did not get their claim investigated, Of the men reporting sexual harassment, 12 percent did not get their claim investigated.
This may also contribute to mistrust in HR, Bischoff said. “There’s no good reason for harassment not to be investigated,” Bischoff said. “Serious allegations of harassment should always be investigated.”
Every year I worry about how I’m going to fill my annual list of worst employers. I’ve yet to be disappointed.
The EEOC recently filed suit against a Medford, Oregon, Chinese restaurant after its middle-aged night-shift manager repeatedly sexually harassed young female employees.
The allegations are horrific. The manager is accused of the following.
Repeatedly making sexual comments, sexual innuendos, and remarks to female employees.
Repeatedly touching female employees’ backs, shoulders, waist, hip/crotch area, buttocks, rubbing his body up against female employees’ bodies, and standing close behind female employees and staring at them.
Repeatedly touching the breasts of female employees including putting his hand under a female employee’s shirt and bra.
Pulling on the shirt and bra of a female employee to expose her nipple.
Asking a 15-year-old female employee to send him naked photos of herself.
Yet, those allegations, as awful as they are, aren’t what earned this employer its nomination. It’s what happened after the victims complained that placed this employer on this year’s list.
Even after the manager … was arrested at work and booked for sexual abuse of the restaurant’s minor employee, he was permitted to return to work.… Despite repeated employee complaints and the manager’s guilty plea to misdemeanor harassment, the restaurant failed to stop his behavior or discharge him. Instead, New China fired one female employee soon after she reported his inappropriate conduct and another female employee felt she had no choice but to resign.
If you enable your 50-something manager to sexually harass your teenage workforce, even after employees complain and he’s arrested for and convicted of harassment, you might be the worst employer of 2020.
A mother is filing a lawsuit against a Salt Lake City-based company after she claims they fired her once they learned her son had cancer.
Becky Claussen has worked for a Salt Lake City Company called The Summit Group for 13 years.
Working remotely in Virginia, Claussen said things changed after her 10-year-old son Cameron was diagnosed with Leukemia in April.…
Claussen took paid time off and when she went back to work, she said her job assignment changed and she received an email saying, “I think we both know you can’t perform the account manager position adequately under the new circumstances.”
In July, Claussen said her boss flew from Utah to Virginia to meet up.
“I went down to the hospital lobby and I met with him,” said Claussen. “That’s where he told me they were ending the business relationship.”
In that moment, Claussen said her boss fired her.
Returning to Cameron’s hospital room, Claussen explained what had happened—he then turned to her and said, “I’m sorry I got cancer cause it made you lose your job.”
If you fly across the country to fire an employee while she is in the hospital with her child battling Leukemia, you might be the worst employer of 2020.
*Silver lining: after five rounds of chemotherapy, the cancer is in remission.
**The company fully denies the allegations, stating, in part: “We are saddened about this situation. The allegation that we let someone go because of a family health situation is categorically untrue. We have been a small business operating in Utah for nearly 40 years and have countless examples of supporting both our employees and their families in the midst of various life trials. We also took reasonable steps to try to accommodate Becky, by granting all of her requests for time off and her request to be relieved of some of her job duties. We provided a flexible working schedule for her at her request. Becky confirmed to me via email that ‘you guys did what works for my family.’”
One of the biggest challenges a person will face in their working lives is dealing with a bully, and unfortunately it happens to pretty much everyone. In the past, our parents told us that this was “character building” and something that “everyone has to go through,” but that’s rubbish.
The culture of the organization should never make excuses for the behavior of its managers
Denigrating the thoughts and actions of another human being has never been acceptable. However, some organizations have been great at finding excuses for it and in some instances even encouraging it.
Having to deal with poorly behaving employees is something that every culture — even those ranked as best places to work — will deal with at some stage. Often the problem with poorly behaving staff is a result of two things: the emotional intelligence of the individual and the culture that lets the person get away with behaving that way.
Managers Aren’t Necessarily Leaders
There’s an assumption that once a person achieves a particular role within a company’s hierarchy, they are automatically a leader.
Managers are good at their jobs, but leaders do that as well as motivating people by role modeling the behaviors they expect of others. This is what the great CEOs around the world do. They run the business efficiently, make good decisions, deal with issues quickly and ensure that a safe space exists for staff to be able to do their best work.
These are the kinds of people we want running our businesses. Not only are these organizations great places to work, but they’re profitable as well.
Researchers Burton and O’Reilly found this in 2000, writing, “Behavioral theories concentrate on what a leader does rather than who a person is. However, studies show that followers tend to look first at who a leader is.”
Direct Style or Bullying?
It’s important to recognize the difference between personality and behavior. Sometimes people confuse a direct management style for bullying. But other times, the CEO sets the wrong tone and is the person bullying others.
A CEO with a direct style of management doesn’t say please or thank you, will often use language that others don’t appreciate, can be blunt in the way that they provide feedback and can often makes decisions that go against the prevailing mindset. These leaders can become more emotionally intelligent, recognize how off-putting their management style can be, and adjust their style accordingly.
Bullies, however, place unreasonable demands on staff, use threatening verbal and physical language, don’t listen, are unapproachable, actively create divisions and treat people differently based on their gender, sexuality, race or skills.
People who behave in this way have no place in business, and it’s up to the people within the culture to reject this. Steve Jobs is one such example of a bully whose staff challenged him when his behaviors got the better of him.
If you’re on the receiving end of this kind of behavior from the CEO or any member of the senior management team, then it’s important to make notes about the interaction and speak with the HR manager. Their position doesn’t mean that they get to behave differently. On the contrary, they need to set the example.
It is the job of the HR manager to ensure that every member of staff upholds the behaviors and values expected. If you’re the HR manager, then you may seek to discuss your approach with your peers and jointly speak to the CEO.
Once the conversation has taken place, then you need to confirm in writing the nature of the discussion and what needs to change. This is often outlined in a process which must be followed in case follow-up action is necessary. A second conversation on behaviors must be followed by a disciplinary hearing in order to send the message that poor behavior won’t be tolerated.
The culture of the organization should never make excuses for the behavior of its managers and should deal with issues in the same way as they would for all. If the CEO doesn’t set the behavioral tone, they should be told to do so. Otherwise, the staff will suffer and so will the bottom line.
If you’re a health care facility whose employees erect a “wall of shame” of disabled patients, and then you drag your feet when an employee, who was also a patient, reports the misconduct, you might be the worst employer of 2019. From the Bangor (Maine) Daily News:
Employees at St. Mary’s Regional Medical Center in Lewiston created a “wall of shame” where they displayed confidential medical records of patients with disabilities detailing issues with their genitalia and bodily functions, according to an investigation by the Maine Human Rights Commission that found the exhibit had contributed to a hostile work environment.
In addition, at least two employees looked at the private medical records of a fellow coworker, MyKayla McCann, whom the hospital had previously treated. She ultimately reported her suspicions about their actions, in addition to the wall of shame, to the hospital’s administration. When she did, it took three to four months for the hospital to remove the display, investigate and punish her coworkers, according to the investigation. …
A human rights commission investigator found there are reasonable grounds to believe that St. Mary’s hospital discriminated against McCann, who is a member of a protected class because she has a disability, when it subjected her to a hostile environment created by her coworkers’ conduct. …
McCann discovered the “shame wall” on the inside of a cabinet door on her first day of work as a laboratory technician assistant at St. Mary’s in June 2015. It had been labeled a “wall of fame,” with the word “fame” crossed out and replaced by “shame.” Portions of medical records had been cut and taped to the door. They “included information detailing patients’ sexual activity, genital dysfunction, bowel movements, bodily odors, and other personal maladies,” according to the investigator’s report.
McCann also provided pictures of the wall in her complaint. In one place, someone had attached strips of paper with diagnoses on them: “cramps/bloated/things to do w/intercourse,” stated one. “Drooping eyelids,” “butt wounds,” “unable to insert tampon,” “sour smell of vagina with occasional itching,” stated others.
Jamie Ortiz (of Puerto Rican descent) worked for the Broward County, Florida, School Board in various capacities for nearly 20 years, including, from 2009 through 2017, as an auto mechanic in the district’s garage under the supervision of Michael Kriegel.
According to the testimony of both Ortiz and many of his co-workers, Kriegel had some issues with Puerto Ricans and other Hispanics, which he expressed to anyone who would listen, including Ortiz, on a daily basis.
Kriegel made offensive comments and jokes about Puerto Ricans, such as, “I’m around too many Puerto Ricans, I better carry my gun with me”; “we need to lock our toolboxes because we’re hiring too many Puerto Ricans”; “this New York Puerto Rican is on me”; “Puerto Ricans like to do their own thing, they don’t follow orders”; and “it ain’t right you Puerto Ricans are making more money than me.” Kriegel never used Ortiz’s name and instead called him “Puerto Rican.” Kriegel also used the ethnic slur “spic” “several times.”
Ortiz also testified that Kriegel harassed him “every day on any type of work order.” Kriegel would wait for him to finish his bus route and say things like, “your Puerto Rican ass think you can do whatever you want to do.” Another time, Kriegel criticized Ortiz for using a certain bus and stated that he was “going to write your Puerto Rican ass up.” Over Ortiz’s objections, these and other comments did not stop.
According to Ortiz’s coworkers, Kriegel used the terms “spic,” “lazy spic,” “knock-kneed spic,” “dumb spic,” and “wetback,” either specifically about Ortiz or about Hispanic people more generally. Kriegel also made other discriminatory comments, including “here comes the Puerto Rican gang, I need to call the cops”; “the damn Puerto Rican again, I’ve got to go see what this freakin’ Puerto Rican is doing, they’re all the same”; “I would rather have, you know, three more of these guys than a smelly Puerto Rican in here”; “spics come over here and they want to eat up all the benefits”; and “had a lot of niggers and spics apply, and we won’t need no more of them here.”
Amazingly, the district court granted the employer’s motion for summary judgment and dismissed Ortiz’s racial harassment claim. The 11th Circuit Court of Appeals, however, was not having it.
Here, a reasonable jury could conclude that Ortiz’s workplace was objectively hostile to a reasonable person in his position. First, for nearly a two-year period preceding Ortiz’s EEOC charge, the frequency of the harassment was daily or near daily. Ortiz reported that, from the beginning of 2013 through September of 2014, Kriegel made offensive comments and jokes every day about Puerto Ricans. Likewise, one of Ortiz’s coworkers stated that he heard discriminatory comments by Kriegel about people of Hispanic origin on a daily basis during the same time period. Other coworkers reporting hearing discriminatory comments on a less frequent but still regular basis. This evidence is not consistent with the type of “isolated” or “sporadic” conduct that is insufficient to meet Title VII’s threshold. Rather, it reflects a work environment “permeated with discriminatory intimidation, ridicule, and insult.”
[T]here is no “‘magic number’ of racial or ethnic insults” that a plaintiff must prove. …
I am flabbergasted that a federal district court judge could conclude that these facts did not, as a matter of law, constitute a racially hostile work environment.
Indeed, I’d argue that even one “spic” or “wetback” is enough to create a hostile work environment. A daily barrage of these slurs is the definition of racially hostile work environment. Bravo to the appellate court for correcting a very poor decision.
Just in time for Valentine’s Day, I bring you the story of a employee rumored to be sleeping with her boss to get a promotion. She wasn’t, but the workplace rumor mill sure thought she was.
Evangeline Parker began working for Reema Consulting Services, Inc., as an entry-level clerk. She received six promotions during her first 15 months of employment, ultimately to the position of Assistant Operations Manager.
Two weeks after her final promotion, Parker learned that “certain male employees were circulating … an unfounded, sexually-explicit rumor about her,” that she had slept with her manager, Demarcus Pickett, to obtain her management promotion. Participation in the rumor mill spread all the way up to the plant’s highest level manager, Larry Moppins, who asked Pickett, “You sure your wife ain’t divorcing you because you’re f–king [Parker]?”
Parker claimed that as the rumors spread, her coworkers, including those she supervised, treated her with “open resentment and disrespect.” It culminated in a staff meeting from which Parker was forcibly excluded, during which the rumor was openly discussed.
When Parker later tried to talk to Moppins about the issue, he blamed her for “bringing the situation to the workplace,” and told her that “he could no longer recommend her for promotions or higher-level tasks because of the rumor,” and that he “would not allow her to advance any further within the company.” A follow-up meeting several days later ended with Moppins screaming at Parker.
Thereafter, Parker and Donte Jennings (the man she accused of starting the rumor) filed harassment complaints against each other. In response, Moppins simultaneously issued Parker two written warnings and fired her.
In Parker v. Reema Consulting Services, the 4th Circuit held that Parker sufficiently pleaded that she had been subjected to a hostile work environment based on sex.
RCSI argued (and the district court concluded) that the rumors could not support a sexual harassment claim because they had nothing to do with Parker’s gender, but instead were about her conduct. The 4th Circuit rejected this argument and reversed the district court:
As alleged, the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success.…
In short, because “traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society,” and “these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men,” it is plausibly alleged that Parker suffered harassment because she was a woman.
No good ever comes from the workplace rumor mill, especially when the rumors are about an employee sleeping her way to the top. According to one recent poll, 97% of employees report that spreading rumors about a co-worker’s sex life is the most inappropriate office behavior.
What can you do to limit the harm caused by workplace gossip, especially that about an employee’s sex life? Consider the following 5 suggestions.
Implement a “no-gossip” policy. A year ago I would have told that the NLRB would have serious issues with such a policy as a violation of employees’ rights to engage in protected concerted activity by talking about their terms and conditions of employment. Currently, however, the NLRB concludes that no-gossip policies are perfectly legal under its new Boeing rules on facially neutral handbook policies.
Keep private matters private. If you don’t want employees gossiping about their co-workers’ private lives, then encourage employees to keep their private lives private. Employees can’t gossip about that which they do not know. That said, in the age of social media, when we are all connected with each other 24/7, this goal is increasingly difficult to accomplish.
Set a positive example. The rumors in Parker were bad, but became that much worse when management began participating. If you want your employees to stop gossiping and spreading rumors about each other, set a positive example, and expect all employees to follow suit.
Encourage complaints. Employees need to know that HR and management are receptive to complaints about gossip and rumors. Even if not sex-based, take the complaint, and treat it seriously. This means investigating, and talking to those starting or spreading the rumors to make sure they stop.
Spread positive news. Is an employee doing a good job? Did he or she go above and beyond? Spread that type of news around the work place. The flip-side of negative rumors are positive stories about employees, customers, and culture. Good news stories will help drown out the negative.
And, for goodness sake, do not in any way, shape, or form permit employees to suggest that another slept her way to the top, or discipline the victim when she complains.
2019 is officially the year that my Worst Employer contest went international.
How do you motivate your employees to hit their sales goals? If you’re the Runfa Hair Salon in Wuxi, China, you abuse the hell out of ’em.
According to the Daily Mail, employees who failed to sell 3,000 to 4,000 yuan ($436 to $582) worth of hair products each day suffered harsh physical punishment.
How harsh?
Employees were forced, in meetings in front of co-workers, to slap themselves in the face 100 times. If their face wasn’t sufficiently reddened, they’d face a monetary fine of 500 yuan ($73).
Others were force-fed raw chili peppers, onions, and vinegar. And some were forced to complete 10-km run.
Anyone who complained was summarily fired.
All of a sudden your quota at work doesn’t seem so bad, does it?
The lawsuit further alleges that the owner fired McCrary in an “alcohol and drug-induced rage” during an all-staff meeting after McCrary had raised health and safety concerns following the outbreak, screaming, “Everyone, everyone Shawn is fired – get the (expletive) out of my company!”
According to digital media company Racked, 
Every year I worry about how I’m going to fill my annual list of worst employers. I’ve yet to be disappointed.
If you’re a health care facility whose employees erect a “wall of shame” of disabled patients, and then you drag your feet when an employee, who was also a patient, reports the misconduct, you might be the worst employer of 2019. 
Just in time for
2019 is officially the year that my Worst Employer contest went international.