- Smashburger, an international chain of hamburger restaurants, has agreed to pay $70,000 to settle a lawsuit alleging that one of the workers at a Long Island, New York, restaurant was subjected to racial harassment by a manager, according to a Nov. 24 announcement.
- The manager created a racially hostile work environment, referring to the worker using racial slurs and harassing him for being in an interracial relationship, according to the U.S. Equal Employment Opportunity Commission's (EEOC) lawsuit. After the man complained about the behavior, he was transferred to another location far from his home. The employee's complaints to his district manager about the unlawful conduct were not taken seriously, EEOC alleged.
- The three-year consent decree settling the case calls for the restaurant to revise its anti-discrimination policies nationwide; create procedures for the investigation of discrimination and retaliation complaints; put into place training for supervisors, management, and HR employees on a nationwide basis; train all New York employees and to provide periodic reporting to the EEOC.
Employers may be "automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages," EEOC says. Employers that respond appropriately when harassment complaints are made, however, may develop a strong defense to potential claims.
A court recently held, for example, that an employer was not liable for harassment alleged by three truck drivers even though extensive evidence was presented of a hostile work environment. The employer took prompt remedial action sufficiently calculated to stop the harassment, the court said. When the harassment was reported, the employer tried to separate the complainant from the accused within 24 hours.
It follows then that HR should have a robust harassment reporting procedure and should take all complaints seriously. As part of this effort, HR professionals should be approachable, legal experts have advised, recommending that responses to complaints be prepared in advance so that both HR and front-line managers are ready to say, for example, "Thank you for raising your concerns with me. I want you to know we take them seriously." In addition, complaint procedures should allow employees to report concerns to more than one person, EEOC has said.
When a complaint is made that warrants follow-up, a good-faith investigation should ensue. Witnesses should be interviewed, discussions should be documented, and if evidence of harassment is discovered, measures should be put in place aimed at making sure that the misconduct does not continue, legal experts have said.
Finally, HR should also make sure that retaliation does not follow complaints of bias or harassment, otherwise employees will be reluctant to use the complaint procedure. If employees are afraid to use the complaint procedure, a strong complaint procedure won't help businesses avoid liability, even if an employee never reported harassment. A federal appeals court overturned a district court's decision in 2018, for example, saying a reasonable jury could find that the plaintiff was prevented from reporting harassing behavior because of her "legitimate fear of the possible consequences of doing so."