Friday, April 29, 2011
Jon Harkavy sends us a copy of EEOC v. Xerxes Corp., a racial-harassment decision just released by the Fourth Circuit. For the sake of getting right to the interesting issue, I'm going to oversimplify a bit. Employer learns of really bad racial harassment in the workplace. Employer takes significant steps to stop the harassment, including disciplining but not discharging the harassors. Really bad harassment continues. Is the fact that the harassment continued evidence that the employer did not take appropriate remedial measures to stop the harassment?
Ultimately, I think this has to be a judgment call. Wrist-slaps aren't enough. On the other hand, industrial capital punishment probably isn't appropriate for most first-time offenses, at least for those of us who believe in progressive discipline and the possibility of remediation. But sometimes reasonable minds can differ over where to draw that line, which is why the case produced three separate opinions.
Query: is the judgment call for the judge or for the jury?