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We know employees have the legally protected right to oppose unlawful harassment and discrimination. But does the unlawful conduct have to actually exist today? If an employee tells you that she thinks she is going to be harassed next month, is that a legally protected activity?
Just how reasonable does her belief have to be that she is or is going to be a victim of harassment or discrimination to afford her the right to be free from retaliation for expressing the concern? How do we determine if the employee's belief is "reasonable?" Here's the recent case.
An employee (black, female) comes to your HR manager and reports she has been subjected to a hostile work environment (HWE) by her supervisor (white, female) who twice in a 24-hour period called her by a racial slur. HR conducts an investigation and although the manager denies using a racial slur it appears more likely than not that the supervisor engaged in at least inappropriate and unprofessional conduct. Simultaneous to the investigation you inquire about this employee's work performance (congratulations, you're the company President). The Department Director tells you her performance is poor, describing her as having failed in every role she's been given.
It is now four days after the employee first reported the incident. Your Department Director issued corrective action to the supervisor for her actions. What do you do now with this poor performing employee?
- Was she subjected to unlawful, racial harassment?
- If you fire her, can she claim she was subjected to unlawful retaliation if the answer to Question #1 is "No"?
- If you decide to fire this poor performing employee, can she sue you as an individual for unlawful harassment and retaliation?
These and other questions were recently addressed and a new answer was established for employers in the states covered by the 4th U.S. Circuit Court of Appeals (MD, VA, WV, NC & SC) in a 106-page decision issued May 7, 2015.
Question #1 first. Are two isolated comments in a 24-hour period enough to constitute unlawful harassment or create a HWE? The court first reminded us that "an isolated incident of harassment, if extremely serious, can create a hostile work environment." So while one isolated remark usually will not constitute unlawful harassment, if it is made in the context of threats or humiliation then it might. In this case, the supervisor not only called the employee a racial slur but did so while yelling at and berating the employee so close to her face that the supervisor reportedly "sprayed" the employee's face with saliva. (yuck)
Question #2. Even if it was not unlawful harassment, can the employee still prevail in a claim of unlawful retaliation? It is possible if she was either actually subjected to unlawful harassment; "reasonably" believed she was subjected to unlawful harassment; or reasonably believed such harassment was "taking shape" or in progress (the, "I am;" "I thought I was;" or "I will be" assertion). So the question for the court was whether it was "reasonable" for this employee to believe she was subjected to a HWE as a result of two isolated remarks in a 24-hour period or that she would be based on prior, culminating conduct.
Question #3. Suffice it to say I would not ask this question about individual liability if the answer was, "No." The employee sued the employer and the company President in his individual capacity for both unlawful racial discrimination by virtue of a HWE and retaliation.
If you want to know how this story ends stay tuned as it has been remanded to the lower court for further consideration. Until then, this court finds that, "Under today's decision, employees who reasonably perceive an incident to be physically threatening or humiliating do not have to wait for further harassment before they can seek help from their employers without exposing themselves to retaliation."
Lessons Learned?
- Keep the goal in mind. As employers we want to maintain a workplace that is not only free of unlawful harassment but is civil and respectful. The court describes a similar goal, " We seek to promote the hope and expectation...that employees will report harassment early so that their employers can stop it before it rises to the level of a hostile environment."
- Time is everything - well, it's at least powerful. If this employee's performance was so poor it warranted termination why was she still working there? Was there prior and proper documentation? Why now? Why was the employee discharged just four days after expressing her concern? Ask yourself these questions when considering adverse employment action. Has anything out of the ordinary happened lately that could give the appearance of retaliation? If yes, that does not mean that you cannot or should not proceed with corrective action, including discharge. But be prepared to answer these questions.
- Use a sounding board. Whether it is in your in-house or external legal counsel or a fellow member of your executive team, don't go it alone. When you are aware that an employee (may have) recently engaged in some type of protected activity (asking for FMLA leave; filing a workers' compensation claim; or expressing a concern about wages, hours or some condition of employment) bounce your options off of someone else. Generate options and associated risks. Then you may be more fully informed and prepared should your actions be challenged.
- Train, train, train - your staff and managers! Forget the law I say! Stay true to your policies, which likely hold employees to a higher level of conduct than the law. Remind everyone of the expectations of civility and respect in the workplace. Add to that, the resources available to report concerns of harassment or discrimination. Reassure employees about your no-retaliation provision and what that means. In a supplemental program remind managers about their duty to prevent and correct unlawful harassment as well as how to keep them safe from individual liability!
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