Any Second Chances After the First Racial Slur? 9:44, May 5, 2017

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Distraught Black woman stands facing viewer while group of people heedlessly walk by.

Any Second Chances After the First Racial Slur?

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Discriminatory remarks by biased decision-makers can lead to lawsuits and subvert policy. They may also demand ethical decision-making in the form of a firm but fair response. For example, in late March of 2017 the United States District Court, District of Columbia ruled that an employer could be liable for two “explicitly discriminatory” remarks about a job candidate’s disability that articulated “discriminatory hiring practices.” The Second Circuit Court of Appeals ruled the following month that just one discriminatory comment can lead to liability, in this case for a hostile work environment.

Regardless of whether courts find that a single racial slur can create a hostile work environment, an employer should respond to such comments immediately. After all, it doesn’t take much to create a toxic workplace. A Select Task Force of the Equal Employment Opportunity Commission (EEOC) reported that workplace harassment begins when an employer tolerates misconduct instead of nipping bad behavior in the bud. An appropriate employer response to such incidents can make all the difference to aggrieved or accused employees and in the courts.

Jury to Hear Single Racial Slur Case

According to the Second Circuit’s summary order, the EEOC argued that “the one-time use of the [N-word] from a supervisor to a subordinate can, by itself, support a hostile work environment claim.” The District Court had disagreed and jettisoned the claim. However, on appeal, the Second Circuit ruled that the lower court had misinterpreted precedent, which stated that courts must examine “the quantity, frequency, and severity of [racial] slurs considered cumulatively,” to determine whether the slurs had created a hostile work environment [emphasis in the summary opinion].

In other words, if a racial slur is severe enough, under certain circumstances it can create a hostile work environment. The appeals court also reiterated reasoning from one of its prior cases that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as [the N-word] by a supervisor in the presence of his subordinates.” The court did not rule that such a racial slur, by itself, can support a hostile work environment claim, as the EEOC had argued. However, the Second Circuit did allow the case to move forward for a jury to determine whether the one-time use of the slur, under the circumstances, created a hostile work environment. [Daniel v. T&M Protection Resources, LLC.]

Policy, Law & Ethics Implications

Perceptive readers with a legal bent may note that the Second Circuit’s summary order has no precedential value. They may also observe that it’s highly unusual for a single remark to create a hostile work environment. But while it’s true that this case created no new law, the Second Circuit specifically observed that its own precedent “did not foreclose the possibility that the one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment.” Additionally, as employment law blogger and attorney Eric B. Meyer points out, the Second Circuit is not the only court to find that a single remark or incident can create a hostile work environment. While such bad facts may make bad law, it’s also true that bad facts happen. When they do, they create ethics and policy challenges — sometimes even liability.

Even if this case is an outlier, it shows the outer edges of an employer’s compliance obligations. More importantly, it points to the employer’s ethical obligations to promptly address any discriminatory or other bad behavior regardless of whether it’s a clear violation of the law, or just plain wrong.

In these situations, ethical obligations apply across the board — employers owe them to employees at all levels of the company ladder. On the one hand, employers have a duty to protect worker-bee types from discriminatory or bullying bosses; they also are duty-bound to institute fair processes in evaluating accusations against managers.

Zero Tolerance

Some employers have a zero-tolerance policy for discrimination. When the evidence shows that an employee has violated that policy, it’s the company’s obligation to discipline and sometimes terminate the offending employee. However, everyone responsible for imposing discipline needs to know the value of properly investigating and documenting company responses to misconduct. Not only does this help prevent or ameliorate liability, but these practices embody ethical norms such as respect, dignity, and fairness.

One potential pitfall in implementing a zero-tolerance policy for the use of the N-word is that such policies may fail to take context into account, and could unintentionally target some African Americans who use the term (generally ending in “-a,” not “-er”) as an endearment. The NFL’s zero-tolerance policy for using the N-word on the field elicited controversy for this very reason, as The Washington Post reported as part of a feature story on the N-word’s prevalence. Of course, whether workplace policies can or should address complex social norms is a larger question. An argument in favor of these zero-tolerance policies, for example, would posit that tolerating a historically racist slur in any context perpetuates racism.

Progressive Discipline

On the other end of the spectrum, some companies have progressive discipline policies that require warnings, reprimands, and other formal processes before an employee can be terminated. Courts sometimes interpret these policies to create a duty to terminate an employee only for cause. (Most employment contracts are “at-will,” which means the employment relationship can be ended for any legal reason by either party.) So, from contract law and ethics perspectives, employers need to follow the procedures they’ve promised in progressive discipline policies.

Most progressive discipline policies have exceptions to the requirement for a formal process, such as when a worker’s words (or actions) manifest violence or are particularly egregious. Although it’s usually a best practice and ethical duty to conduct fair and thorough investigations, if someone’s in immediate danger, ethics and safety concerns may call for a quicker action. Even in these circumstances, a diligent employer can, and usually should, conduct a follow-up investigation after the fact to ensure that the discipline was fair to everyone involved.

Educate, Empower & Exemplify

The best practice and ethical duty to conduct fair and thorough investigations applies to any kind of employment policy. Likewise, employers should follow all other aspects of their policies consistently to avoid unfairness and actual or apparent discrimination.   

Regardless of how well workplace policies address racial slurs and similar misconduct on paper, it’s imperative that employees charged with putting policy into practice are educated and empowered to execute their duties properly, lawfully, and ethically. But education and empowerment alone will not lead to consistent ethical behavior in an organization. For ethics to permeate an organization (and perhaps make racial slurs and other egregious conduct outliers in the process), leaders need to set the tone and follow through to ensure that their intended tone resonates at all organizational levels and becomes embodied in everything from policy implementation to everyday work activities. Leaders need to keep a finger on the pulse of the company’s ethical lifeblood.

LawRoom (powered by EverFi) delivers online training to help your business meet compliance requirements both dynamically and scalably. In addition to our award-winning online courses, LawRoom delivers a robust, cloud-based learning management system to help you easily deploy and track our growing library of ethics, anti-harassment, data security and employee conduct courses.

 

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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