A new Ninth Circuit Court of Appeal ruling highlights how critical it is for employers to take all necessary steps to prevent racial harassment in the workplace and to stop such misconduct when it occurs. We’ll recount what happened and suggest how you can set up an effective antiharassment program.
Racial Slurs and Graffiti
George McGinest, an African American, worked for GTE Service Corp. for 23 years as an outside plant construction worker and relief supervisor in Long Beach and Huntington Beach.
McGinest claimed a supervisor and co-workers repeatedly subjected him to racial slurs. In response to a gold chain McGinest wore, supervisor Jim Noson allegedly remarked, “Only drug dealers can afford nice gold chains.” Employee Tom Hughes reportedly said that McGinest “should stay in Long Beach where you belong, with your kind.” Several employees called McGinest “nigger.” And co-worker Daniel DeLeon repeatedly called white worker Matt Ketchum “Jemima” in McGinest’s presence and referred to McGinest as Ketchum’s “mammy.”
McGinest charged that there was racist graffiti on the men’s restroom walls, including “nigger,” “white is right,” and “nigger go home.” “Nigger” was scrawled on GTE switchboxes, in the blockhouse and garage, and on a Black History Month poster.
McGinest eventually sued GTE, claiming he was harassed because of his race. And now the Ninth Circuit has ruled that he can take his case to a jury.
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Racial Hostility in the Workplace
The court said that a reasonable African-American man would find this workplace so racially hostile that it amounted to an abusive working environment. McGinest was subjected to extreme racial insults and subtle taunts by supervisors and co-workers, the court said.
The court rejected GTE’s argument that there was little evidence of racial hostility in some of the alleged incidents, such as Noson’s reference to McGinest as a drug dealer. The court said that even when a comment or word isn’t overtly racial, it can still be “code” for racial stereotyping.
Comments To White Worker Don’t Undermine Lawsuit
That Ketchum, a white worker, was also targeted with insults didn’t undermine McGinest’s race bias claims, the court said. When racial hostility permeates a workplace, an employee can make a claim of race harassment even if all the incidents didn’t directly target this person. What’s more, McGinest charged DeLeon made racially charged comments to Ketchum specifically to anger McGinest. If racial hostility motivates a harasser to make provocative comments to anger and harass someone, said the court, those comments are relevant in determining whether a hostile work environment existed, regardless of to whom the comments were superficially directed.
Employer Inaction
The court concluded that a jury could find GTE was liable for the harassment because it didn’t take adequate steps to end it. Despite McGinest’s repeated complaints, the company took little action to remedy the situation. What’s more, GTE only cleaned up one act of graffiti even though the company knew or should have known of other instances.
Preventing Harassment
To avoid a lawsuit like the one GTE faces, it’s extremely important to take all reasonable measures to prevent harassment from occurring. Be sure you have in place a strong antiharassment policy, comprehensive complaint procedures, and training for all employees.
Provide periodic refresher training to both high- and low-level managers and supervisors about the serious consequences of harassment. Remind them that under state law they can be personally sued for harassment.
Investigate thoroughly when an employee complains about harassment. If warranted, impose appropriate discipline designed to ensure that the harassment won’t occur again. Your prompt response to an employee’s concerns could help avert a lawsuit or reduce the size of a jury verdict if the employee sues.