The main law that prohibits workplace discrimination is Title VII of the Civil Rights Act. With the enactment of the Civil Rights Act of 1991, Title VII of the Civil Rights Act was amended to include compensatory and punitive damages for victims of discrimination under this law (Noe, Hollenbeck, Gerhert and Wright, 2003).
In the case of Jackson v. Flint Ink, 382 F.3d 869 (8th Cir. 2004), the question of law is whether actionable racial harassment was shown or not. In determining whether this was the case, we make reference to precedence as well as statutes. In the case of Ramsey v. Henderson, 286 F.3d 264 (5th Circuit 2002), it was shown that several factors are crucial in determining whether racial harassment is actionable. These include whether there was any adverse consequence on the employee’s work performance as a result, whether the actions against the employee degraded or were threatening to him, how severe the actions were, and how frequent the discriminatory behaviour was (Buckley, 2007).
Title VII of the Civil Rights Act expressly prohibits racially or ethnically motivated insults, jokes, or comments, as well as verbal or physical attacks motivated by a person’s race or color. To the extent that these create a work environment that is hostile threatening or one which gets in the way of an employee’s productivity, such behaviors are actionable (Buckley, 2007).
In our case, the frequency criterion is satisfied. Racial remarks were made two times by supervisors against the employee and four times against the same employee by fellow employees. In addition to racial remarks, racial graffiti against the employee was inscribed on walls. The KKK symbols in particular bear threatening connotations and possibilities, especially to the Black minority group to which the victim belonged, a fact that satisfies the severity criterion. In Williams v. Conagra Poultry Co. 378 F3d 869 (8th Cir 2004) where similar graffiti and racial epithets were used, the court ruled that a hostile working environment was created (Buckley, 2007). Accordingly, the conduct against the black employee had heavy racial overtones, was discriminatory, and created a hostile working environment. Therefore, it constituted a clear case of actionable racial harassment.
In conclusion therefore, the court should rule that the employee was racially harassed and in line with the Civil Rights Act (as amended) award compensatory and punitive damages.
Date: 8th July 2009
To: Jane May, Human Resource Director
From: Robert Kelly, Legal Officer
Subject: Sexual harassment of George Wilson
Wal-Mart Stores Inc is the largest retailer in the world. Its success derives from its sales associates, who work in several shifts across the clock. One of these shifts runs from eight in the morning to five in the evening, with lunch and rest breaks in between.
George Wilson joined Wal-Mart seven months ago and was assigned to this shift.
The only black American in a predominantly white shift, he seemed to be the target of the shift supervisor who particularly did not take to him. At the end of the shift, George Wilson would ordinarily be forced by the supervisor to stay behind and work off the clock, the point being that he had not completed his assigned tasks (which seemed to be unusually more than what each of the rest of the associates had been assigned, or beyond the skill level and position for which he was hired). To complete those assignments on time, George would typically skip meal and rest breaks. Since the reasoning was that he did not complete his assigned tasks before the end of the shift, the extra hours he put in did not count as overtime and he was therefore deceptively underpaid.
Soon enough, George’s job satisfaction, morale, and productivity dwindled and he started absenting himself. When the supervisor threatened to relieve him of his job two months ago, he sued the company for racial harassment seeking compensatory and punitive damages. All this while, Wal-Mart’s management neither knew nor approved of the supervisor’s discriminatory practices.
In line with your earlier request for a legal interpretation of this saga and the way forward, I submit this memo to you.
Is Wal-Mart going to be held vicariously liable for the racial harassment perpetrated against George by the supervisor?
An employee’s liability for racial harassment is the same as that for sexual harassment, in accordance with Sec §4.03(G). In the event that the harassment leads to some adverse material action such as the firing of the employee, the employer would be held liable. Where however no such tangible action occurs, the employer can be left off the hook if he establishes a valid affirmative defence. This can be achieved in two ways. Firstly, he can demonstrate that reasonable measures were taken to prevent and correct the harassment, and secondly, he can establish an affirmative defence by showing that the employee (the victim) unreasonably failed to make use of the established channels for airing his harassment grievances. This was amply demonstrated in the case of Allen v. Michigan Dept of Corrections, 165 F 3d 405 (6th Cir 1999) (Buckley, 2007).
Additionally, in Edwards v. State of Connecticut Dept of Transportation 18F Supp 2d 168 (D Conn 1998) and in Jackson v. Flint Ink N Am Corp., 382 F 3d 869 (8th Cir 2004), it was ruled that where such harassment is carried out by an employee against a fellow employee, the employer would be liable to the extent that he failed to take prompt corrective action when the case came to his attention or to provide mechanisms for redressing such complaints (Buckley, 2007).
Even though the supervisor threatened to sack George Wilson, this threat was never carried out. Therefore, it does not automatically follow that Wal-Mart is vicariously liable for the harassment of George Wilson by the supervisor. However, Wal-Mart will have to establish affirmative defense that it took reasonable care to prevent or correct such harassment, or that George Wilson unreasonably failed to use the established channels to register his complaints. As it is however George never made any formal complaints (there was no mechanism for airing such complaints that was known to anyone of us), nor did the company take any steps to identify and correct such incidences. For this reason, it would be difficult for Wal-Mart to establish an affirmative defense and the court will have to uphold the performance of punitive and compensatory actions by Wal-Mart.
Since our company seems to be in a weaker position, it should press for an agreeable settlement with George rather than allow the case to drag in court. This will not only prove to be less disruptive and time consuming to our company, but it will also save the company huge legal costs as well as the loss in reputation that comes with having its name dragged in court for racial harassment. To prevent the occurrence of such cases in future, the company should:
a) Formulate a written anti-harassment policy, which all employees must be made aware of and which they must sign against (Roscigno, Lopez and Hodson, 2009).
b) See to it that the policy is enforced fairly and objectively, and that periodic audits are made to ensure that it is being followed (Roscigno, Lopez and Hodson, 2009).
c) Establish third party mechanisms through which employees can channel their harassment complaints, for example confidential hotlines.
d) Put in place formal grievance procedures which must be made known to all employees (Roscigno, Lopez and Hodson, 2009).
e) Train all the employees, supervisors and managers on the need to maintain proper behaviour that is in line with the anti-harassment policy (Roscigno, Lopez and Hodson, 2009).
f) Respond quickly and conclusively resolve any harassment cases that are reported (Roscigno, Lopez and Hodson, 2009).
I hope that you find this memo useful. I will be glad to discuss any issues appertaining with you.
Buckley, FJ. 2007. Equal Employment Opportunity 2007 Compliance Guide. Aspen Publishers. ISBN: 0735566054, 9780735566057.
Noe R, Hollenbeck J, Gerhert B, and Wright, P. 2003. Fundamentals of Human Resource Management. McGraw Hill.
Roscigno, VJ, Lopez, SH and Hodson, R. 2009. Supervisory bullying, status inequalities and organizational context. Social Forces, 87(3), pp.1561 -1590.