Dive Brief:
- Employees need not track every instance of harassment for their lawsuits to survive summary judgment, the 1st U.S. Circuit Court has ruled (Rivera-Rivera v. Medina & Medina, No. 17-1191 (1st Cir., Aug. 1, 2018)).
- Martina Rivera-Rivera sued Medina & Medina, alleging that she was told that, because she was "old," she was "useless" and "worthless." She said she was chastised because her age rendered her "slow," and told to resign and seek social security benefits. The mistreatment occurred every single day, or nearly every single day, until she resigned, she alleged.
- A federal district court granted summary judgment for the employer, finding that the suit lacked detail, but the 1st Circuit revived her claim, chastising the lower court for expecting more specificity than can be mustered by "the average worker in an allegedly perpetually abusive environment." It continued: "From where we sit, the district court appears to have believed that Rivera was required to produce evidence of every single individual offensive act directed toward her — including the exact date, exact individual involved, and exact words used." But imposing such a requirement could create an insurmountable threshold for those alleging repeated harassment, the court said, adding that it refused to "mandate the keeping of a diary in anticipation of litigation."
Dive Insight:
When employers fail to stop harassment, they may create federal anti-discrimination law violations. Compliance training for employees and managers is a good first step, but, for training to succeed, it must occur in a culture that supports the messaging. "If culture fails, then training fails," Ingrid Fredeen, vice president and senior product manager at NAVEXEngage recently recently told HR Dive.
To that end, some employers are going deeper, working to address biases. Research suggests unconscious bias training can be successful, especially if it's offered in a generic way: When employees accept that everyone has biases, they can be more willing to examine their own.
Culture also can be used to communicate that an employer takes employee complaints seriously. While a strong reporting mechanism and prompt remedial action can often head off discrimination claims, that's not always the case if employees fear retaliation.
Age discrimination, in particular, remains employment's "open secret" and is often viewed as more acceptable than other forms of discrimination, according to the U.S. Equal Employment Opportunity Commission. The agency has warned, however, that it will focus on age discrimination this year, and some have begun including age in their diversity and inclusion efforts to avoid such violations.