Diversity & Inclusion

Employers, beware: Facility issues may result in violations of Title VII

by Jacob M. Monty

Many employers are aware of the serious problems that can arise if workers and supervisors engage in racially or sexually motivated taunts and speech. However, few employers realize that they may need to worry about the design and condition of their facilities. The facilities of a now-closed Sara Lee factory in Paris, Texas, reportedly cost the company $4 million in a settlement with the Equal Employment Opportunity Commission (EEOC)Bathroom sign

Don’t do it like Sara Lee

Sara Lee, which is now known as Hillshire Brands, closed its Paris plant in 2011, but the EEOC investigated the facility for two years after employees filed numerous complaints against the company. At the heart of the matter was racially charged graffiti on the walls in employee bathrooms. According to the EEOC’s findings, white managers were responsible for at least some of the graffiti, which included references to the Ku Klux Klan and drawings of nooses.

Besides the bathroom graffiti, the EEOC investigated accusations that management promoted less experienced white employees and placed black employees in more hazardous positions. The hazards included exposure to asbestos and black mold. In fact, some of the positions were so hazardous that black employees complained about the increasing number of workers diagnosed with cancer. The EEOC found that management ignored the concerns.

Tips for employers

The issues at Sara Lee’s plant extended beyond bathroom graffiti and included allegations of employees using racial slurs in the work area. The case should serve as a warning for employers. It shows that racially charged conduct may be investigated by the EEOC or employees’ lawyers and result in significant exposure.

Employers would be wise to adopt policies and procedures to address facility problems like the graffiti at Sara Lee’s plant. For instance, employers should conduct bathroom inspections to look for graffiti that could be offensive, particularly graffiti focused on a protected class. Don’t rely on employees or even managers to determine what is or isn’t offensive. Instead, all bathroom graffiti should be immediately removed, and the responsible party should be reprimanded. Conducting regular bathroom inspections will limit your exposure to potential fines if an employee does use inappropriate graffiti.

Bathroom graffiti isn’t the only source of facility trouble for employers. Employers can face EEOC scrutiny for not having adequate facilities. For instance, employers should provide separate restroom facilities for each gender. For some businesses, this may be an unwelcome financial burden, but in 2016 and forward, it is likely to be increasingly difficult to explain the lack of separate restrooms. Fortunately, providing separate bathroom facilities has additional benefits beyond compliance with local, state, and federal laws. By providing gender-specific facilities, there is a reduced likelihood that employees of the opposite sex will be exposed to sexist graffiti. It’s important to note that you should offer separate facilities even if your workforce is composed entirely of a single gender. For example, if you provide only female bathrooms because you have only female employees, you could send the message that men aren’t welcome in your workplace.

In addition, employers face ever-increasing uncertainty on how they should handle transgender employees’ access to bathrooms. State and local regulations vary dramatically. However, in a recent case, the EEOC found that an employer violated Title VII of the Civil Rights Act of 1964 by refusing to allow a transgender employee to use the restroom that was consistent with his gender identity. Although the company argued that coworkers would be uncomfortable if the employee used a particular bathroom, the EEOC found that allowing coworkers to decide which restroom the employee could use would reinforce “the very stereotypes and prejudices that Title VII is intended to overcome.”

Bottom line

As you can see, even a seemingly simple matter such as providing bathroom access is fraught with difficulties and potential liability. To ensure complete compliance, it’s always wise to review your existing Monty_2x3 smallerpolicies and procedures for protecting workplace equality. Consult a local labor and employment lawyer, and conduct a review of the measures you currently have in place. As the Sara Lee case illustrates, this area requires constant vigilance.

Jacob M. Monty of Monty & Ramirez LLP practices at the intersection of immigration and labor law. He is the managing partner of the Houston firm and may be contacted at jmonty@montyramirezlaw.com.