By: Leah K. Sell, Esq.
Racism is a difficult topic for anyone, including employers, but it cannot be ignored. Failing to address racism will, at a minimum, leave employers open to legal claims. Employers have a legal responsibility to provide a workplace that is free from discrimination, harassment, and retaliation.
This employer responsibility can extend beyond the four walls of the office. Now, more than ever, employees are working remotely due to COVID-19. This should serve as a reminder that activities that occur outside of work often affect what happens inside of work. When outside behavior, whether work-related or not, interferes with an employee’s ability to perform their job, results in an adverse employment action, or creates a hostile or offensive working environment, the employer becomes obligated to address those outside activities.
For instance, if Employee X makes a racist comment on their private social media account outside of work, the employer may not be responsible for Employee X’s actual posting. However, if other employees are disturbed by Employee X’s outside behavior and it interferes with their ability to do their jobs, the employer is responsible for addressing these concerns. This is true even if Employee X never made any posts or statements while in the workplace or using employer resources.
This can be particularly important if Employee X is a supervisor, that is, an employee who has the ability to make or effect hiring, firing or other terms of employment decisions. The employer will be held vicariously liable, actually accountable, for the adverse actions of the supervisor, including creating a hostile work environment. This is true even if the employer did not know of, or did not authorize the actions. Therefore, it is very important that employers heed warnings that supervisors are acting, or may act, in a discriminatory manner or are creating a hostile work environment.
Employers should also remember that they have this duty to address harassment and discrimination not only from employees and supervisors, but also from third parties such as clients and vendors.
So, how do employers address racism?
- Review recruiting and other hiring practices for implicit bias and procedures that adversely impact minorities
- Develop strong policies that prohibit discrimination and harassment
- Ensure leadership supports these policies and will be active in their implementation and enforcement
- Policies should include examples of prohibited behavior, including updates for the social media era such as jokes, memes, posts, and shares
- Provide training on the policies and procedures, including reporting methods such as where employees should go if they do not feel comfortable reporting to the assigned individual
- Provide guidance on investigations and disciplinary actions
- Enforce the policies and procedures; policies that are not enforced are more harmful than helpful
- Document and address all reports according to the policies and procedures, regardless of whether there initially appears to be merit to a claim or not
- Prohibit retaliation against anyone who makes a report or participates in an investigation; remind everyone of this policy every time there is a report or investigation
- Discipline should be prompt and proportional for violations of policies, including a failure to investigate or otherwise follow procedures
- Review and update job descriptions to accurately reflect legitimate requirements for the position
- Establish objective review, salary increase, promotion, and criteria
- Train management on evaluation and disciplinary methods
A note on diversity and inclusion programs. Proper diversity and inclusion programs can be helpful to address harassment and discrimination. They also can improve both company and employee performance and growth and reduce turnover. Such programs, however, must have support, goals, metrics, and accountability. Programs in name or policy only, without action, can lead to claims of discrimination for failure to follow policies and decrease employer credibility.
Lastly, employers should choose their leadership carefully and ensure that they actively support policies by following and enforcing them. Management is an extension of the employer for whom the employer will be held responsible. Remember, the responsibility to provide employees with a workplace free from discrimination and harassment does not start and stop at the door, it begins and ends with how employees are affected in the workplace. So, listen to employees by giving them a safe and accountable system to voice concerns, especially now.
If you have any questions regarding employment-related legal issues related to racism or any other employment-related legal issue, please contact Leah K. Sell. Leah Sell is an Associate with Leech Tishman, and a member of the firm’s Employment & Labor, Corporate and Litigation Practice Groups, as well as the Cannabis and LaunchPad subgroups. She is based in the firm’s Pittsburgh office and can be reached at 412.261.1600 or firstname.lastname@example.org.
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