No workplace is perfect. And the one I read about last night was far from it.
The plaintiff, who is black, alleged that one of her coworkers called her “loud and black” and “ghetto” behind her back. She further claimed that another coworker repeatedly used the N-word in the office and, one time at a meeting, called her the N-word directly.
Let’s assume this behavior is bad enough to allow the plaintiff to pursue a hostile work environment claim in court against her employer. The plaintiff must still meet other burdens of proof. Specifically, she must show that her employer knew or should have known of the harassment and failed to take prompt remedial action.
Since a negligence standard governs employer liability when the harasser is a coworker, an employer is not negligent when it takes “prompt remedial action” that is “reasonably calculated to end the harassment.”
So, let’s talk about the employer’s response to the bad behavior.
The company learned about the plaintiff’s harassment straight away from a manager who witnessed it. Then, HR immediately intervened, and an investigation ensued. Just five days later, the company issued final written warnings to the two harassers, informing them that another instance of racial slurs would result in their termination.
The plaintiff claimed that the investigation could have been more thorough, and there could have been follow-up meetings to reinforce that the company does not tolerate this behavior. Heck, she never got an apology.
While an apology would have been nice and additional training a best practice, the court nonetheless determined that the company “took the allegations seriously, it conducted prompt and thorough investigations, and it immediately implemented remedial and disciplinary measures based on the results of such investigations.”
Indeed, the bad behavior stopped. Defendant wins the lawsuit.
But could the defendant have avoided the lawsuit altogether?
The plaintiff resigned from her employment because of perceived racial discrimination and harassment to take another job elsewhere.
Perhaps some additional proactive training before the complaint could have eliminated the coworker’s repeated use of the N-word in the workplace. After the complaint, additional training would have reinforced that the company is taking the bad behavior seriously and won’t tolerate it.
I didn’t read anything in the decision about either the company encouraging the plaintiff to report any similar additional incidents or reminding the harassers that the company does not tolerate retaliation. Each is a best practice.
Finally, the law does not require an apology to the victim. But it costs nothing to give one. You’re not admitting legal liability; you’re showing empathy.
So, just say, “We’re sorry.”