Don’t excuse racism in your workplace, prevent it from happening

Employment lawyers can help you review your organizational culture concerning race
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Following the killing of George Floyd and the related protests, virtually every segment of society began examining the issue of race in its respective organizations. Colorado business owners should be no different. Egregious racially offensive conduct in the workplace continues to exist.

Very recently, the NASCAR brand was put under a microscope when Bubba Wallace found a noose in a workplace garage. The fallout and investigation were ugly for all involved. Even the owner of a speedway had his profits affected through lost sponsors after making an off-color and ignorant post concerning the incident.

What’s bad is that the issue of nooses in the workplace continues to be a vehicle of racial harassment and a significant concern for employers to prevent. What’s good is that proactive employers are using such events as an opportunity to shore up their policies and corporate behaviors concerning race.

What’s at Stake? Unpacking the Risk to Employers

Race discrimination in a workplace harms the interests of every employer of every size, operating in every sector. Racism in the workforce impedes morale, creates distrust, and obstructs teamwork. At this time, Colorado employers must understand the issue of racial harassment and work to ensure that all employees will be treated fairly and equally in dealing with this issue.

Federal and Colorado laws prohibit race discrimination in employment. Racial harassment is a form of racial discrimination. Racial harassment places the employer in a position of confronting administrative charges filed by employees with state or federal government enforcement agencies, investigations by such agencies, and litigation initiated by individual employees or government enforcement agencies.

A claim for a hostile work environment based on race is the most common claim to address racial harassment. An essential element of this claim requires the claimant to prove that the discriminatory intimidation, ridicule, or insult is sufficiently severe or pervasive to alter the conditions of the claimant’s employment and create an abusive working environment.

A victim’s harasser may be the victim’s supervisor, a manager or supervisor in another department, a co-worker, or the employer’s clients or customers in the workplace. There is not any automatic number of offensive incidents, or specific forms of conduct, required for a viable claim. Each claim must be viewed in the context of the totality of the circumstances.

As recently as April 13, 2020, the federal court in Colorado addressed the use of the most heinous racial epithet in the Ostrom v. Mountain Top Inc. case. This matter involved an ice cream shop in Vail, where a co-worker repeatedly referred to Ms. Ostrom’s boyfriend with the N-word and repeatedly threatened to shoot him, including the nonverbal conduct of simulating the firing of a gun. This conduct resulted in Ms. Ostrom lying on the floor of Mountain Top in a fetal position and ultimately running out of the store to the police. A single workplace incident, if sufficiently severe or pervasive like the one described in the Mountain Top scenario, is actionable and can suffice to assert a hostile work environment claim against an employer.

Preventing Racial Harassment in the Workplace

Every employer is unique, and every employer improves by developing a program that is both consistent with its operations and management, and effective in preventing racial harassment in its workplace. Recently, the University of Iowa football program and the NFL Washington Football Team were confronted with numerous complaints alleging that each organization had a discriminatory work culture. The Iowa program faced the issue of race, and the Washington organization addressed the issue of sex discrimination. Rather than merely investigate specific complaints, these organizations retained outside law firms to conduct a comprehensive analysis and investigation of the culture of the organization concerning the type of discrimination in issue.

While the investigations concerning the Iowa program and the Washington NFL team were in response to a series of complaints, every organization may benefit by conducting a comprehensive evaluation of its workforce and practices to prevent harassment. The Report of the Co-Chairs of the Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace identified five core principles that have generally proven effective in preventing and addressing harassment that Colorado businesses owners can benefit from:

  • Committed and engaged leadership
  • Consistent and demonstrated accountability
  • Strong and comprehensive harassment policies
  • Trusted and accessible complaint procedures
  • Regular, interactive training tailored to the audience and the organization

Now is the Time to Prevent Racial Harassment in the Workplace

Extreme racial harassment in the workforce continues to exist. An effective, comprehensive analysis of the workforce may serve as a first step toward implementing a program to prevent race harassment. The time to act is now, before an embarrassing incident occurs or a lawsuit is filed.

Employment lawyers can help you review your organizational culture concerning race. They can also work with your team to prevent new complaints by examining prior complaints concerning race discrimination and harassment and by interviewing key executives, managers, supervisors, and affected employees. Your company has the opportunity to develop proactive training programs concerning racial bias, unconscious bias, as well as diversity and inclusion in the workplace. Finally, a review and modification of existing policies might be necessary. In 2020, when issues surrounding race and racial harassment are top of mind, all employers have the opportunity to benefit from implementing an effective program to prevent race discrimination in their workforce.

Steven Murray is an experienced attorney in employment and civil rights law, litigation, and trial practice. Steven’s experience has been virtually exclusively devoted to practicing private and public-sector employment, civil rights law, and trial practice.

Categories: Business Insights, Legal