Textbook on How NOT to Deal with Racial Harassment

The judge in the case wrote that the conduct was “constitutionally offensive in any setting” and concluded that this “is a rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct.”

The judge granted partial summary judgment in favor of the U.S. Equal Employment Opportunity Commission (EEOC).

In so doing, the judge found that three black employees were subjected to an objectively hostile work environment and that the employer may not assert an affirmative defense to liability. The judge also denied the employer’s motion for sanctions, characterizing it as “wholly without merit.”

‘Steady Barrage of Opprobrious Racial Comments’

The EEOC filed suit against Utah construction company Holmes & Holmes Industrial, Inc. in September 2010, alleging that the company subjected Antonio and Joby Bratcher and a class of African-American employees to unwelcome racial harassment and retaliation (EEOC et al. v. Holmes & Holmes Indus., Inc., No. 10-CV-955, D. Utah). In its opinion, the court observed that “[t]he conduct in this case constituted a ‘steady barrage of opprobrious racial comments.'”

During the course of their employment with Holmes, the site superintendent referred to the Bratchers and Buie as “n—-rs” or a variation of that word almost every time he spoke to them, and referred to his own nose as a “n—–r nose.” The superintendent frequently told racial “jokes,” such as, “why don’t ‘n—–s’ like trees? Because they are used to hanging from them.”

Sadly, during a meeting for all Holmes employees, Holmes’ HR manager asked employees “not to n—-r-rig their jobs.” Racist graffiti was evident both inside and outside portable toilets on the work site.

The court further determined as a matter of law that Holmes was not entitled to assert an affirmative defense to liability because the undisputed facts show that the Bratchers complained on numerous occasions, including at least four times to management officials.

Also, the court held that Holmes’ anti-harassment policy was “unreasonable as a matter of law” because it directed employees to report harassment to their harassing supervisor with no alternative means to bypass that supervisor.

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Four Strikes?

The judge called at least four strikes against Holmes & Holmes:

• Engaged in “constitutionally offensive” behavior
• Management and HR participated
• Management and HR ignored four complaints
• Policy was unreasonable as a matter of law because it required complaining employees to complain to the harassing supervisor.

Sure, some worksites are rougher than others, but even in the roughest, there are clear limits and use of the N word or other racial slurs is always over the line.

What sort of inappropriate behavior is going on in your workplace? Unfortunately, it’s not always as obvious as it was in this case. There’s really only one way you can be sure that your systems are operating according to policy—regular audits. The rub is that for most HR managers, it’s hard to get started auditing—where do you begin?

BLR’s editors recommend a unique product called HR Audit Checklists. Why are checklists so great? Because they’re completely impersonal, forcing you to jump through all the necessary hoops one by one. They also ensure consistency in how operations are conducted. That’s vital in HR, where it’s all too easy to land in court if you discriminate in how you treat one employee over another.

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HR Audit Checklists compels thoroughness. For example, it contains checklists both on Preventing Sexual Harassment and on Handling Sexual Harassment Complaints. You’d likely never think of all the possible trouble areas without a checklist; but with it, just scan down the list, and instantly see where you might get tripped up.

In fact, housed in the HR Audit Checklists binder are dozens of extensive lists, organized into reproducible packets, for easy distribution to line managers and supervisors. There’s a separate packet for each of the following areas:

• Staffing and training (incorporating Equal Employment Opportunity in recruiting and hiring, including immigration issues)
• HR administration (including communications, handbook content, and recordkeeping)
• Health and safety (including OSHA responsibilities)
• Benefits and leave (including health cost containment, COBRA, FMLA, workers’ compensation, and several areas of leave)
• Compensation (payroll and the Fair Labor Standards Act)
• Performance and termination (appraisals, discipline, and termination)

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