Friday, April 29, 2011

Second-Guessing an Employer's Response to Harassment

4th 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?


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Judge Traxler's opinion does a thorough job of sorting through the evidence and reaching reasonable conclusions. As he points out, the EEOC seemed to proceed on a theory of strict liability: if bad things happen, then the employer is liable regardless of what preventive or corrective actions it took. That is dangerous nonsense.

I've had similar issues in arbitration cases. The problem revealed in several of those cases is that, because of fear of EEOC charges, employers frequently over-react. Judge Wilkinson's concurrence addresses this problem: "To push employers to immediate and draconian actions is to dispense with any semblance of due process — to require disciplining
the accused upon mere accusation. It is true the defendant here is not a state actor, but no entity — public or private — should be denied the leeway to sort out right from wrong."

Lurking behind these cases is an important unresolved Constitutional issue: whether the government can achieve indirectly what it could not do directly -- that is, whether the government can punish protected speech by forcing employers to discipline or fire employees who use it. This case involved overt and personal slurs, but other cases I've seen involved speech that would clearly be protected by the First Amendment such as criticisms of politicians and expressions of belief about race or gender or religion. Listeners may well be offended, particularly since shop-floor employees don't use euphemisms or avoid politically incorrect statements the way we academics and lawyers instinctively do, but drafting employers to punish such speech as "harassment" would blast a significant hole in the First Amendment.

Here's one recent arbitration example. An employee at a medical facility worked in a setting with significant downtime. Employees spent hours talking about everything -- personal lives, religion, politics, sex, and more. Several employees spoke frequently about their Christian beliefs. No problem. One employee spoke just as frequently about her Asian shamanistic beliefs. When she claimed to talk to the spirits of the dead, and reported that the spirits criticized some her co-workers' conduct, a few employees complained to the employer. The employer, without making any attempt to distinguish between harassment and speech that was simply annoying, fired that employee. The employer's defense? "The Government made us do it."

Posted by: Dennis Nolan | Apr 29, 2011 6:33:08 AM

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