Good-natured banter is part of the normal work environment. But when the teasing takes on racial or sexual overtones, you can be sued for millions of dollars-even if everyone laughingly participates in the give-and-take. That’s what happened to a Los Angeles employer who failed to intervene when kidding crossed the line and became illegal workplace harassment.
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Just Joking Around?
The case was brought by Darryl Hampton, 37, an African-American, and Lance Kobayashi, 39, an Asian-American, against National Research Group, Inc., a large firm that conducts research for the motion picture industry. Kobayashi had worked there for almost three years and Hampton, for 10 months before leaving the company.
Hampton and Kobayashi claimed co-workers and two supervisors regularly directed slurs and epithets at them, such as “Jap Boy,” “Rance,” “Nip” and “Shoeshine Boy.” They also charged that racially offensive cartoons and caricatures were often displayed at work.
Hampton and Kobayashi alleged that despite more than a dozen complaints to management about the offensive, racially charged behavior, little or nothing was done to stop it.
Howard Knee and Melanie Ross, attorneys for National, told CEA that joking had occurred. However, they contended the teasing was not unwelcome and did not create a racially hostile work environment.
In fact, National said that Hampton and Kobayashi often led the racial kidding and were good friends with the supervisors and co-workers. They all regularly socialized outside the office, driving to work, sharing meals, watching football, visiting clubs and generally “hanging out” together.
Plus, Hampton wrote on his application for unemployment benefits that he had no prior problems with his manager.
The Jury Decides
National says Kobayashi complained only once, telling the lead supervisor that being called a “Nip” bothered him. On that occasion, National took no action, according to Kobayashi’s attorney.
National confirmed that Hampton complained that two supervisors had made racially offensive remarks to him. But the supervisors denied making the statements, and lacking witness corroboration of Hampton’s allegations, National took no disciplinary action.
The jury sided with the two former employees, awarding them $1 million plus attorneys’ fees and costs totaling almost $900,000. National is appealing the verdict.
Steering Clear of Problems
You don’t want a sterile workplace, devoid of all camaraderie among your workers. And policing employee conversations is not a pleasant task. But when teasing takes a racial or sexual turn, you should be prepared to act:
- Don’t assume it’s OK. Even when employees seem to be enjoying themselves, their smiles and even their responses in kind may hide deep discomfort and embarrassment.
- Be proactive. At the first sign of racial teasing, talk with the affected employees, before they complain. Ask them how they feel and let them know you’re willing to step in and take action.
- Warn co-workers. If an employee says the teasing is a problem, remind co-workers that such remarks are inappropriate and violate your anti-harassment policies. By focusing on the policy violation, you may also avoid the perception that the employee ran to management to complain.
- Always investigate and document. Every employee complaint of harassment or offensive language or behavior should be checked out, and discipline imposed, if warranted. Be sure to document all your efforts, plus everything else that occurred.
- Review policies. Although zero tolerance doesn’t mean zero room for workplace levity, it may mean no racial or sexual humor.
Be certain you have a clear, comprehensive written policy prohibiting any form of illegal discrimination or harassment and requiring everyone to be treated with dignity and respect. Make sure all employees receive a copy and are periodically reminded of the policy. Michelle Court, attorney for Hampton and Kobayashi, told CEA that National had distributed a written sexual harassment policy mentioning only briefly that harassment in general was prohibited. National had no written policy specifically covering racial harassment, which according to Court, suggested to the jury that National didn’t take such problems seriously.