In Uneasy Times, HR Renews its Peacekeeping Mission - HR's Tools for Recovery - human resouces must prevent ethnic discrimination

Workforce, Nov, 2001 by Monica Ballard

What can HR do to prevent a potential national-origin harassment or discrimination claim? How can it keep harmony in these distressing days? There are clear-cut steps to take. And doing nothing could mean a lawsuit.

Since the terrorist attacks of September 11, the media have revealed image after image of people identified as enemies: the hijackers, the Taliban leadership, terrorist sympathizers in Pakistan, Osama bin Laden. Dark-haired, dark-eyed, bearded Middle Eastern men have become the villains of America's nightmares.

Despite pleas from politicians and religious leaders not to overreact or lash out against Arab-and Muslim-Americans, there has been backlash. Three Arab-American passengers were removed from a flight after other passengers refused to fly if they stayed on board. Authorities are investigating three killings-in Texas, California, and Arizona-as hate crimes. Derisive jokes persist on radio programs. The Internet is awash in bigoted "humor."

Many employees continue to feel stunned and depressed. Others are angry. Against this backdrop, it isn't surprising that some talk-show jokes and racist comments are repeated in the workplace. But if this behavior makes an employee feel ostracized, harassed, or discriminated against, the employer may face serious morale and legal problems.

Attorneys at the Equal Employment Opportunity Commission are fielding such complaints about national-origin discrimination. One employee in Nevada apparently was terminated because he was thought to be a terrorist, according to Peter Laura, an EEOC attorney in Los Angeles.

What can an employer do to prevent a potential harassment or discrimination claim, as well as to build harmony among employees? Here's how HR can renew its commitment to serve as peacekeepers of the workplace.

Harassment and discrimination policy

The Supreme Court ruled in 1998 (Burlington Industries, Inc. v. Ellerth, and Faragher v. City of Boca Raton) that as long as the harasser was not a supervisor, and there was not a tangible loss, the employer had an "affirmative defense." If the employer has policies that are consistent with what is required under state and federal law, and if the company can prove that the employees knew who should be contacted to report concerns about harassment or discrimination, the employer has an "affirmative defense." The EEOC has issued policy guidelines making it clear that this "affirmative defense" also applies to national-origin claims.

Distribute your policy in a way that is noticeable to employees. Attach it to their pay stubs. Send it out via intranet or e-mail with a confirmation of receipt requested. Include a cover letter that explains the particular need for care and sensitivity at this time--especially toward people from the Middle East. Include a comment cautioning against stereotyping any employees on the basis of national origin, or of repeating derogatory jokes that are heard over radio or television broadcasts. Add a note about the various channels that are open to any employee who has a complaint, question, or concern.

Supervisory training

Policies usually list the employees' supervisor as one avenue of complaint. Supervisory staff members who hear bantering, joking, or cultural stereotyping are considered to be "on notice," and are required to take certain steps to respond. If a complaint is made to an employee's supervisor, the company is once again considered to be "on notice" and is obligated to respond with an immediate, thorough, complete, and objective investigation. The company is required to conclude the investigation, communicate the results, remedy the situation, and guard against retaliation. How many supervisors are unaware of these requirements? How many could oversee these steps or communicate with human resources so that the problem could be handled by professionals? Few.

The need to train supervisors can't be overstated. My company, Parallax Education, provides training programs to educate employees about workplace harassment. In the course of our work, we have heard of, or participated in, hundreds of cases of harassment and discrimination. The six-and seven-figure jury awards in these cases are based not on the original harassment, but on the lack of response, or the inappropriate response by managers or supervisors. Supervisors are the eyes and ears of a workplace. Their role in maintaining a "hostility-free" work environment for all employees is essential.

The defense of any harassment or discrimination claim relies heavily on the ability to prove that employees were notified of the various avenues available to them to report harassment (including their supervisor), and the failure of the employee to use those vehicles to report harassment. If the supervisor ignores a complaint, or treats it less seriously than required by law, the employer's defense is lost. An employer obviously cannot afford to have managers who are untrained about the proper response to complaints or questions.

Complaints of religious discrimination--including discrimination against Muslims--have increased sharply in recent years. The Muslim community in the United States is growing rapidly. The Council on American-Islamic Relations reports in a 2001 study that complaints rose 15 percent in 2001--even before September 11.