Lessons from Starbucks' Race Together initiative.
The term "hostile work environment" often gets thrown around without any thought to what it really means. The greatest misconception is that anything hostile or abusive that happens in the workplace is illegal. Albeit inappropriate, screaming at an employee or calling him stupid is actually not illegal.
The flipside of that coin is that conduct does not necessarily have to be abusive or threatening to create a hostile work environment when the subject matter is a protected category under Title VII of the Civil Rights Act, which prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin. Forcing employees to engage in discussions with strangers about race without any control over how the customer will respond opens an opportunity for the work environment to become incredibly uncomfortable for employees.
Employers have a duty to protect their employees from customer harassment based on protected categories, not just from other employees. So if a customer responds to an offer to start a conversation about race with a mean-spirited joke or a racial epithet, the employer will have to take action against that customer. If these types of responses become repetitive, the employer would likely have an obligation to stop the source of the conflict--in other words, cease the practice of having employees start discussions about race.
There are other pitfalls in having work-place discussions around sensitive topics that fall into protected categories under Title VII. Despite the best intentions of the participants to be thoughtful and candid, a discussion of this sort can bring to the surface differences in thought among employees, which may result in ill will. Likewise, comments made during these conversations could be used as evidence that a particular manager is prejudiced against certain types of people. Individuals certainly have different perceptions of the meanings of comments and actions, so a manager might feel that comments he or she makes do not show any sort of prejudice, while the people hearing the conversation can come to a different conclusion. Should the manager then take some disciplinary or other job-related action against an employee, the conversation may be used as the basis for a discrimination lawsuit. At that point, the speaker's intent is less relevant than how the comment is perceived by a judge or jury.
Most employers have not taken steps to instigate such sensitive discussions in the workplace, but events will arise in the news that relate to these topics and become fodder for water cooler conversation. Employers do not want to become the "speech police," monitoring every communication among employees, even those that might not relate directly to the business. Yet these conversations can become problematic. The key is to make sure employees are aware of their opportunities to report behavior that causes them discomfort. Open-door and non-harassment policies attempt to encourage employees to come forward well before any workplace conduct becomes a truly actionable illegally hostile environment. This process can assist employers in nipping problems in the bud.
Handling a complaint related to an uncomfortable discussion can have its own problems, however. Chances are that the employee being complained about did not understand that discussing the news could be grounds for being called out. Many employees wrongly believe that the First Amendment protects the right to discuss these events at a private employer's place of work. Thus, when having the conversation with the offending employee, the employer needs to be prepared to educate them on the differences of opinions and perceptions that people have as well as the employer's right to keep some discussions out of the workplace.
While public conversation about the Starbucks "Race Together" campaign will die down, employers can expect the occasional need to address misunderstandings and comments as long as the world is focused on these issues. In light of that, there are some steps employers can take to be prepared.
First, managers need to be made aware that they should not engage in conversations on controversial, non-work-related topics with employees. In addition, employees and managers should be trained on the reporting procedures so they know how to address problems before they become big issues. Employees also need to understand that the company's nondiscrimination and harassment policy extends not just to their fellow employees, but also to customers and vendors.
Most importantly, employers must be responsive when employees raise concerns, regardless of whether their complaints are valid. Not every event that makes somebody uncomfortable is inappropriate--sometimes an employee must be told that their complaint is not going to result in any changes. But failing to follow up with the employee creates an atmosphere of distrust or leads to the belief that the employer is not sincere about preventing illegal harassment.
Ed Harold is a partner in the New Orleans office of Fisher & Phillips and chair of the firm's retail industry practice group.
by Ed Harold
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|Title Annotation:||Fore front|
|Date:||Jun 1, 2015|
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