Magazine article Workforce

Racial Barbs Are Flying-At an Employee's Wife

Magazine article Workforce

Racial Barbs Are Flying-At an Employee's Wife

Article excerpt

Q: I recently had a complaint from a male employee who claimed that a number of his peers were making sexually insulting remarks about his wife, who is of a different race. The alleged remarks were not something I would repeat in the locker room, and certainly not here.

He stated that these remarks were creating a hostile environment and concerned a female of a different race, both protected classes under Title VII, stating that if it couldn't be fixed, he would go to the EEOC.

He gave me the names of the alleged harassers, and I talked with each of them separately, noting that "if such harassment is occurring, the company would not tolerate it" I think it has stopped.

However, some of us in HR have been discussing whether the male employee is protected under Title VII. We have concluded that since none of the comments were about him, and were not about his race or sex, that it would be a stretch to have this come under Title VII. We also looked on the EEOC Web site. If his wife were an employee, that might make it different, but nothing that was said pertained to his race, sex, etc. The comments were about a non-employee. (Yes, it is HR's job to prevent ALL harassment, and I think we have done that in this case; thus, this is now a somewhat hypothetical question.) Your views?

A: We think the law is pretty clear at this point that all employees (without regard to the race, gender, or sexual orientation of the employee) are protected under Title VII.

Hostile work environment sexual harassment is defined as: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature ... when such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." A similar definition applies to hostile environment racial harassment.

You have described conduct (comments of a sexual or racial nature) directed at an employee because of his race and/or gender (i.e., male and Caucasian) that would not have been directed at him had he been of a different race or gender (i.e., had he been African American or female).

If the comments were made, if they were objectively unreasonable, and if they were "unwelcome," then the employer might be liable unless it shows that it took prompt remedial action to stop the harassment.

With that in mind, do you think "talking to" the folks who supposedly made the comments was sufficient? In this regard, we have some thoughts: (a) Do you have a policy against such harassment? (b) If so, did the employees who made the comments get a copy of it? (c) Did the employees admit making the comments? (d) Did the employee who complained participate in the comments; i.e., were they unwelcome? (e) If the coworkers admitted making the comments, what century do they think we live in and are they brain-dead? (As one arbitrator wrote in a case we handled where we fired the guy who made the "funny comments": "One would have had to be in a coma for the last 10 years not to know that this type of conduct will quickly result in one becoming an unemployment statistic.")

We would be inclined to urge you to consult with legal counsel to revisit your policies and procedures. Consider the complaining employee's comments fair warning-if he complained, there may be five others who are equally offended who have not complained. Some of them might have already contacted their legal counsel.

You Call This Vacation?

Q: Simple question, I'm sure, for you. An exempt, salaried employee took a vacation day or personal day. The boss called at the employee's home to ask some work-related questions. Must the employee then use personal or vacation time, since she was disturbed by work and work-related problems???

A: This is an easy one for us. The person is a salaried, exempt employee. The boss had to call her at home to talk. …

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