Despite pleas from politicians and religious leaders not to overreact or lash out against Arab- and Muslim-Americans, there has been backlash. Three Arab-American passengers were removed from a flight after other passengers refused to fly if they stayed on board. Authorities are investigating three killings -- in Texas, California, and Arizona -- as hate crimes. Derisive jokes persist on radio programs. The Internet is awash in bigoted "humor."
Many employees continue to feel stunned and depressed. Others are angry. Against this backdrop, it isn't surprising that some talk-show jokes and racist comments are repeated in the workplace. But if this behavior makes an employee feel ostracized, harassed, or discriminated against, the employer may face serious morale and legal problems.
Attorneys at the Equal Employment Opportunity Commission are fielding such complaints about national-origin discrimination. One employee in Nevada apparently was terminated because he was thought to be a terrorist, according to Peter Laura, an EEOC attorney in Los Angeles.
What can an employer do to prevent a potential harassment or discrimination claim, as well as to build harmony among employees? Here's how HR can renew its commitment to serve as peacekeepers of the workplace.
Harassment and discrimination policy
The Supreme Court ruled in 1998 (Burlington Industries, Inc. v. Ellerth, and Faragher v. City of Boca Raton) that as long as the harasser was not a supervisor, and there was not a tangible loss, the employer had an "affirmative defense." If the employer has policies that are consistent with what is required under state and federal law, and if the company can prove that the employees knew who should be contacted to report concerns about harassment or discrimination, the employer has an "affirmative defense." The EEOC has issued policy guidelines making it clear that this "affirmative defense" also applies to national-origin claims.
Distribute your policy in a way that is noticeable to employees. Attach it to their pay stubs. Send it out via intranet or e-mail with a confirmation of receipt requested. Include a cover letter that explains the particular need for care and sensitivity at this time -- especially toward people from the Middle East. Include a comment cautioning against stereotyping any employees on the basis of national origin, or of repeating derogatory jokes that are heard over radio or television broadcasts. Add a note about the various channels that are open to any employee who has a complaint, question, or concern.
Policies usually list the employees' supervisor as one avenue of complaint. Supervisory staff members who hear bantering, joking, or cultural stereotyping are considered to be "on notice," and are required to take certain steps to respond. If a complaint is made to an employee's supervisor, the company is once again considered to be "on notice" and is obligated to respond with an immediate, thorough, complete, and objective investigation. The company is required to conclude the investigation, communicate the results, remedy the situation, and guard against retaliation. How many supervisors are unaware of these requirements? How many could oversee these steps or communicate with human resources so that the problem could be handled by professionals? Few.
The need to train supervisors can't be overstated. My company, Parallax Education, provides training programs to educate employees about workplace harassment. In the course of our work, we have heard of, or participated in, hundreds of cases of harassment and discrimination. The six- and seven-figure jury awards in these cases are based not on the original harassment, but on the lack of response, or the inappropriate response by managers or supervisors. Supervisors are the eyes and ears of a workplace. Their role in maintaining a "hostility-free" work environment for all employees is essential.
The defense of any harassment or discrimination claim relies heavily on the ability to prove that employees were notified of the various avenues available to them to report harassment (including their supervisor), and the failure of the employee to use those vehicles to report harassment. If the supervisor ignores a complaint, or treats it less seriously than required by law, the employer's defense is lost. An employer obviously cannot afford to have managers who are untrained about the proper response to complaints or questions.
Complaints of religious discrimination -- including discrimination against Muslims -- have increased sharply in recent years. The Muslim community in the United States is growing rapidly. The Council on American-Islamic Relations reports in a 2001 study that complaints rose 15 percent in 2001 -- even before September 11.
Employee training and testing
In the training classes that my company conducts, we hear repeatedly from employees that there is great confusion and frustration about the jokes and comments they hear on television. They are confused about First Amendment rights. A frequent question is, "Why is it that people can tell those jokes on the radio, and I cannot repeat them once I arrive at work?" Employees don't always understand that First Amendment rights protect a stereotypical comment or joke on the radio or television. Most employees are unaware that they do not have these same First Amendment rights at work. They don't consider the fact that the person in the next cubicle has no alternative but to listen to their jokes and comments. Outside the workplace, a person can change channels.
Title VII of the Civil Rights Act of 1964 is enforced by the EEOC, which recently reminded employers about illegal workplace bias based on the following:
Religion, ethnicity, birthplace, culture, or speech patterns.
Marriage, dating, or family relations with persons of various religious practices, or national origin.
Physical traits, speech patterns, or cultural traits that could be associated with a national-origin group.
Dress or jewelry -- whether it is identified with an ethnic group or a religion.
Perception that a person is of a certain national origin, based on the person's appearance, dress, mannerisms, or speech.
In addition to receiving training that alerts them to behavior that is against company policy, and could result in termination, employees should be educated about how to report harassing or discriminatory behavior.
Again, the Supreme Court's 1998 "affirmative defense" decision is allowed if an employer has policies that are consistent with what is required by state and federal law, if the company has disseminated these policies (via training, for example), and if it can prove that an employee knew how to report unwanted behaviors directed toward a protected class.
The most effective way to "prove" that employees knew the rules is to conduct a post-training test. On the test, employees should be asked to list several places where the company's policy on harassment and discrimination can be found. The test should also include a question, and a section for responding, in which employees can list the five persons to whom they could report harassing behavior or concerns. Once a company has this post-training test, it can determine whether all employees do in fact know to whom they can report concerns. The test should be filed for future reference.
Finally, HR itself needs to know how to field employees' complaints, questions, and concerns. This is the last component of a four-tiered system for protecting employees and the company. When training is provided to supervisory staff about their obligations to monitor the workplace, and the importance of a thorough, complete, and objective investigation, they are more likely to turn complaints over to human resources. They come to understand through their education process the importance of having a professional handle what can be an involved, painstaking process. Employees who have been trained in the company's policies have received an important message: We are here for you. We want to hear from you. As a result, employees are likely to make more calls to human resources requesting assistance or relaying complaints.
When a complaint is filed, make sure the HR staff knows what to do. The following is a model that I use at trials to explain an employer's actions to the jury.
Training: The Equal Employment Opportunity Commission recognizes training as an "effective remedy" to a complaint of harassment or discrimination. Most attorneys recommend that training be repeated annually on this subject.
Policies and procedures: When a complaint is raised, the human resources professional should review the company's policy on harassment and discrimination with both the accuser and the accused, for clarification.
Investigation: Despite the absence of witnesses, each complaint must be followed with an investigation. The complainant and all witnesses must be interviewed. If there are no witnesses, random open-ended questions should be asked to see if anyone else has experienced or observed harassing or discriminatory behaviors. The investigation should be:
Immediate. Once the employee has raised the subject, the clock is ticking for HR.
Thorough. The alleged perpetrator and his or her witnesses must be interviewed. Supervisory staff must be interviewed, and anyone who might have information about the issue must be interviewed. There is no such thing as a he said/she said issue. Evidence can always be found to corroborate one perspective or another.
Complete. Once you begin interviewing employees, you will find conflicting testimony. Each witness who has conflicting testimony must be re-questioned.
Objective. Under no circumstances should the human resources professional engage in behavior that appears to be protective of the company, protective of the complainant, or protective of the alleged harasser. Each entity should be treated with equal care and concern, to maintain the appearance of objectivity. If HR is concerned about the appearance of a lack of objectivity, an outside expert should be hired.
Conclusive. At the end of the investigation, the HR professional is required to come to some kind of conclusion. Sometimes, the person is still unable to confirm that the harassment occurred, or to confirm that it didn't occur. The biggest mistake the HR person can make at this point is to conclude nothing. The conclusion, in this case, is inconclusive, and must be communicated to those with a "need to know."
Communicated to the alleged harasser and the alleged victim. Human resources is required to communicate its conclusion to the complainant and the alleged harasser. The complainant has a right to know, and will want to know, that the company took serious action (remedy) against the harasser. The people who supervise the two people also should be informed of the results of the investigation so that they can continue to monitor the workplace and guard against repeated behaviors or retaliation. The HR professional should ask the complainant what actions he or she would like to see taken to remedy the problem (while stating that the company cannot promise to meet the request). Then, if at all possible, the company should act on the remedy that the employee requested, and document that it did so.
Guarding against possible retaliation: In the Los Angeles area, 48 percent of all employees who file discrimination and harassment charges against their employers also file charges of retaliation. That is, something changed about the complainant's work space or assignments after the complaint was filed with human resources. Even if the change appears to be minuscule, or unimportant, the employee can perceive it to be significant, and the complainant's attorney can convince a jury that the change was very important. Nothing should change in the complaining employee's work environment for six months after the complaint.
Documentation: Document the date and time of the complaint, and the date and time of your interviews with each witness, party to the complaint, or supervisor. Send the results of your conclusions in writing to the two parties involved. Document your advice to the complainant about reporting any retaliation to you. Document your advice to the alleged harasser with cautions about retaliating. Document your efforts to train and retrain. Document your reissue of the company's harassment and discrimination policy. Document the trips you make back to the workplace to check with the complaining party and his supervisor, to make sure that no further harassment or retaliation has occurred. You have heard it before: document, document, and document.
This is a time of great introspection and consideration about what it means to be human, and what it means to be an American. It is also an opportunity for HR professionals to reaffirm their commitment to a work environment where all people, all religions, and all contributions are valued.
Workforce, November 2001, pp. 38-41 -- Subscribe Now!