Racially-Charged Jokes And Comments: How Can Managers Prevent Hostile Working Environments?

By Leslie Zieren, The McCalmon Group, Inc.

The U.S. Court of Appeals for the Seventh Circuit recently overturned the district court's decision in Gates v. Board of Education of the City of Chicago (7th Cir. 2/20/19).

The plaintiff, who is African-American, began working as a building engineer for the Chicago Board of Education in 2004. In 2012, Rafael Rivera became his supervisor. According to the lawsuit, Rivera told the plaintiff during a meeting in June 2013, "You will not be promoted because of your age and because you're black." The plaintiff did not receive a promotion for which he had applied.

The plaintiff further alleges that two months later, Rivera told blatant, racial, and insensitive joke, directed at him. The plaintiff further alleges a supervisor also called him the "n-word" twice in 2014, and once told him that he would write his "black ass up" if he did not "kiss the principal's ass to make her happy."

The employer argued that Rivera only interacted with the plaintiff "a few times a year", which was not a sufficient amount of time to create a severe or pervasive racially hostile work environment.

The district court granted summary judgment for the defendant employer and dismissed the plaintiff's claims of racial harassment, stating "the threshold for plaintiffs is high, as '[t]he workplace that is actionable is one that is `hellish.''" The district court did not find the alleged harassment met this threshold.  

When the plaintiff appealed the district court's decision, the appellate court stated that harassment must be severe or pervasive to be actionable, but did not agree with the lower court's characterization that a workplace must be "hellish" to support a claim for racial harassment.

The appellate court rejected the lower court's determination that "that one or two utterances of the N­-word are not severe or pervasive enough." A supervisor's use of racially derogatory language is "much more serious than a coworker's".

The appellate court reversed the summary judgment and remanded the case back to the lower court for further proceedings. "Fred Gates, Plaintiff­Appellant, v. Board of Education of the City of Chicago, Defendant­Appellee" (7th Cir. 2019); scholar.google.com (Feb. 20, 2019). 

Commentary

The U.S. Supreme Court has defined actionable harassment as conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. A requirement of "hellish" is not recognized in the law.

What can managers do to help prevent racial harassment in their workplaces?

Remember, you set the example. Never allow racially-charged words, jokes, or comments in your workplace.

Be observant. Watch and listen to make sure others are not subjecting a minority employee to racial slurs or threats. Interrupt behaviors that cross boundaries and can lead to actionable harassment if left uninterrupted.

If any harassment is observed by you or reported to you, immediately inform those in your organization who are authorized to make sure an investigation ensues. Cooperate with any investigation of workplace harassment.

Attend all training your employer provides on discrimination and harassment prevention. Ask questions. Ask for examples and scenarios. Make sure you understand the concepts before you leave the training. If any of your employees ask you a question about the training and you do not know the answer, be sure to ask your human resources department or your supervisor and get back to the employee with the answer.  

Never ignore any report of harassment. Your job is not to judge the report, the reporter, or the people named in it. Your job as a manager is to refer the report immediately to those in your organization authorized to manage reports of harassment.

Make sure you never retaliate against someone who reports harassment, even if an investigation reveals no harassment occurred. The law protects employees who bring an issue of harassment forward, whether what they complain about rises to the level of harassment as defined in the law or not.

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