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Harassment To Retaliation: Going From Bad To Worse

By Kirstin Heffner, The McCalmon Group, Inc.

The U.S. Equal Employment Opportunity Commission (EEOC) recently settled a retaliation lawsuit with a manufacturer of oil field equipment. An African-American man, who served as a former quality control employee, reported to his employer that his white coworkers wore a white hood that resembled Ku Klux Klan regalia to intimidate, ridicule, and insult him. He claimed that representatives for his employer told him the incident was meant as a "joke".

The man was then fired after he refused to sign a statement declaring that the employer adequately addressed his complaint. L.M. Sixel "Houston manufacturer settles EEOC retaliation suit, pays former employee $120,000," www.chron.com (Apr. 28, 2017).

According to the EEOC, 28,216 harassment claims were filed in 2016, proving there are rotten apples in the workforce today committing race and other types of harassment. Illegal harassment is harassment that is so "severe or pervasive" that it creates a work environment that a reasonable person would consider intimidating, hostile, or abusive.

The legal question in this matter is whether a reasonable African-American man in the same or a similar circumstance would find the conduct was not a "joke" and instead would find it to be humiliating, degrading, disrespectful, threatening, and racist. Harassment is always determined by how the words or conduct land on the target, not by what the harasser's intention may be. Consequently, there is little legal value in claiming a statement or an act was a "joke".

If a manager or supervisor's harassment results in a hostile work environment, the employer can avoid liability if it can prove: 1) it reasonably tried to prevent and promptly correct the behavior; 2) the employee unreasonably failed to take advantage of preventive or corrective opportunities the employer provided; and 3) the employee suffered no negative tangible employment action.

When a manager tries to cover up harassment with a statement that attempts to exonerate the employer, the manager looks complicit or even like a co-participant. This type of behavior is, by no means, going to satisfy the requirement of promptly correcting the behavior or preventing it from happening again.

The best response for managers and supervisors is to separate the harasser and victim after a charge is made and pending the outcome of an investigation. Take care not "punish" the victim by changing the victim's work schedule or job location. Don't be surprised and don't retaliate if the accused and the accuser are sent home, by those managing the investigation, pending the outcome of the investigation.

Once the investigation reveals the facts, follow closely the actions dictated by human resources. Monitor future behavior of the accused to make sure the harassment does not happen again.

It is important that managers and supervisors remain vigilant for retaliatory behavior against the victim because retaliation is a concept every juror understands.

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