The population in the United States – and by extension, the workforce – is becoming increasingly diverse. According to projections
from the U.S. Census Bureau, by 2044
, racial and ethnic minorities will be the majority in the U.S. Because of these demographic changes, employers must to redouble their efforts to make the workplace a welcoming place for all employees. Unfortunately, there are still cases of workplace discrimination based upon an employee’s national origin or race, despite 50 years since the passage of Title VII of the Civil Rights Act of 1964.
In January, the Equal Employment Opportunity Commission (“EEOC”) announced the settlement
of a lawsuit it had filed against a mining company in West Virginia on behalf of a former foreman at the company who had alleged discrimination on the basis of his national origin. The former employee alleged that he was subjected to severe and pervasive harassment based upon his Polish ancestry, including being subjected to derogatory ethnic slurs, name-calling, and offensive graffiti written about him on the walls of the mine and in other places in the workplace. The EEOC alleged that the employer not only failed to stop the harassment, but then terminated the employee’s employment in retaliation for his complaints. The employer had to pay monetary relief to the former employee, enter into a five-year consent decree, enact specific workplace policies, and provide training with respect to discrimination, harassment, and retaliation to all managers, human resources personnel, and employees.
In an earlier case also brought by the EEOC, an African-American employee who belonged to the Islamic faith alleged
a hostile work environment because of his religion. The employer accommodated his religion by allowing the employee to use a private room to pray, to attend a prayer session on Friday afternoons, to wear a beard, and to wear a traditional head covering. But his co-workers called the employee religious-based names, including “Taliban” and “towel head,” they made fun of the employee’s appearance, challenged his allegiance to the U.S. and suggested he was a terrorist, and made comments that all Muslims were associated with senseless violence. His co-workers even posted a cartoon in the dispatch area showing individuals in Islamic dress as suicide bombers. Further, his co-workers frequently hid his time card, especially on Fridays when the employee attended a prayer service, and constantly unplugged his computer equipment. Significantly, supervisors participated in this harassment at times. One of the defense witnesses stated that part of the reason they gave the employee a hard time was because he took the comments about Islam so personally. On the eve of the jury trial, the employer settled with the EEOC, which required it to pay monetary relief to the former employee, enter into a consent decree, provide training to certain employees, and to post a notice about the settlement.
What is an employer to do, however, when we live in an increasingly fractured society, filled with divisive incidents such as a number of state governors suing to keep the federal government from resettling Syrian refugees in their states? Or when a presidential aspirant wants to build a wall between our country and its neighbors? It is important more so now than ever before for employers and their human resources staff to promote not just tolerance, but the value of diversity in the workplace so that all employees feel welcome and valued, and are not discriminated against or harassed.
As mentioned above, Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of race, color, religion, sex and national origin. The Americans with Disabilities Act protects employees from discrimination on the basis of a disability or perceived disability, and the Age Discrimination in Employment Act similarly protects employees from discrimination on the basis of age. State and local laws may add additional protected classifications to this list, including in many cases prohibiting employment discrimination on the basis of sexual orientation. The types of discrimination that are prohibited relate to the terms and conditions of employment, including hiring, firing, promotion, discipline and pay. In addition to prohibiting discrimination with respect to the terms and conditions of employment however, Title VII also prohibits workplace harassment that is severe and pervasive on the basis of race, color, religion, sex and national origin. Most federal courts have extended the protections against harassment to the protected classifications set forth in the statutes other than Title VII.
Employers should make sure that members of management, supervisors, including front line supervisors, and all rank and file employees know and understand that engaging in either discrimination or harassment violates not only the employer’s policies, but also the law. These goals can be accomplished by ensuring that the employer has a good, comprehensive policy prohibiting discrimination and harassment in the workplace that is disseminated to the entire workforce, either by way of an employee handbook or as a stand-alone policy. To ensure that the policy is successful, employers should provide the entire workplace – not just supervisors and managers – with periodic training with respect to workplace diversity. While some employees may understand that they cannot harass someone on the basis of their race, as the first EEOC case discussed above illustrates, many employees still “make fun” of their co-workers based upon their Polish ancestry, or Italian or Irish ancestry. As the workforce ages, some employees “make fun” of their co-workers because of their age. It seems like mere fun and games until you are served with a lawsuit!
Enacting good policies, providing workplace training on these issues, and making sure that the value of diversity is demonstrated by company leadership, not just in reminders from the human resources department, are the keys to making sure that the vitriol of current events and the political landscape do not invade the workplace.
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