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In Uneasy Times, HR Renews Its Peacekeeping Mission

By Monica Ballard

Since the terrorist attacks of September 11 and the beginning of the U.S.-led retaliation on October 7, the media have brought us image after image of the people identified as our enemies: the hijackers, Osama bin Laden, the Taliban leadership, and terrorist sympathizers in Pakistan. Dark-haired, dark-eyed Middle-Eastern men have become the stuff of America’s nightmares.

At the same time, we are cautioned against over-reacting and lashing out against Arab-Americans and Muslim-Americans. Backlash began after the terrorist attacks in September: 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. Jokes about “towel-heads” persist on morning radio programs.

President George W. Bush and business leaders have urged Americans to return to their normal lives. This is a challenge for everyone. Many employees are still stunned and depressed. Some are angry. Mental health professionals are suggesting that we reach out to friends and family, and talk about our feelings. It is inevitable that the talk-show jokes and dialogue will be repeated in the workplace. It may be inevitable that some employees will look with some suspicion or distrust at Middle Eastern employees.

Jokes, conversations, and suspicion could result in a serious problem for the employer if an employee is made to feel ostracized, harassed, or discriminated against.

Attorneys at the Equal Opportunity Employment Commission, are fielding some complaints about national origin discrimination. One employee in Nevada was terminated, apparently because the person 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 build harmony among their employees? HR can renew its commitment to act as a peacekeeping force. Here’s how.

Update Your Harassment and Discrimination Policy and Distribute It

The Supreme Court ruled in 1998 (Ellerth v. Burlington, and Farragher 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 to whom they should report concerns about harassment or discrimination, the employer has an “affirmative defense.” The EEOC has issued policy guidelines that make 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 need for care and sensitivity at this moment in time with regard to comments about Middle Eastern persons, or Muslims. Include a comment cautioning against stereotyping any employees based on national origin and a caution against repeating jokes or stereotypes that are heard over radio or television broadcasts. Add a note regarding the various channels that are open to your employees with any complaints, questions, or concerns.

Supervisory Training

Your policy will probably list the employees’ supervisor as one avenue of complaint. Supervisory staff members who hear bantering and joking, or comments of a stereotypical nature 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 to human resources so that the problem can be handled by professionals? Few.

Training for supervisory personnel cannot be overstated. My company, Parallax Education provides training programs to help educate employees about workplace harassment, and 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 them are based not on the original harassment, but on the lack of response, or the inappropriate response, by managers or supervisors. Supervisors in your company are the eyes and ears of the workplace. Their role in maintaining a “hostile-free” work environment for all employees is crucial.

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

Complaints of religious discrimination, and of discrimination against Muslims have increased sharply in the past years, even prior to September 11. The Muslim community in the United States is growing rapidly, and claims are increasing exponentially. Even before the terrorist attacks on New York and Washington, the Council on American Islamic Relations reports in its 2001 study that complaints rose 15 percent in 2001.

Employee Training and Testing

In the training classes that my company conducts, we hear repeatedly from employees in employee-level training classes that there is great confusion and frustration about the jokes and comments that they hear on television. They are confused about First Amendment rights. A frequent question is, “Why is it that people can tell those jokes on the radio, and I cannot repeat them once I arrive at work?” Employees don’t seem to realize that First Amendment rights protect a stereotypical comment or joke on the radio or television. Most employees are unaware that they do not have these same First Amendment rights at work. They fail to realize that the person in the next cubicle has no alternative but to listen to their jokes and comments, whereas outside the workplace the person can change channels.

Title VII of the Civil Rights Act of 1964 is enforced by the EEOC, which recently reminded employers of the illegality of workplace bias based on the following:

• Religion, ethnicity, birthplace, culture, or speech patterns.
• Marriage, dating or family relations with persons of various religious practices, or national origin.
• Physical traits, speech patterns, or cultural traits that could be associated with a national origin group.
• Dress or jewelry — whether it is identified with an ethnic group or a religion.
• Perception that a person is a member of a certain national origin, based on the person’s appearance, the person’s dress, mannerisms, or speech.

In addition to providing training for employees to alert them to behavior that is against company policy, and could result in termination, employees should be educated about how to report harassing or discriminatory behavior.

Again, the Supreme Court’s 1998 decisions allow the employer an “affirmative defense,” if the employer has policies that are consistent with what is required by state and federal law, if it has disseminated these policies (training), and if it can prove that an employee knew to whom he could report unwanted behaviors based on a protected class.
The most effective way to “prove” that employees knew to whom they should report harassing, stereotypical, or discriminatory behavior is to conduct a post-training test. On the test, employees should be asked to list several places where the company’s policy on harassment and discrimination can be found. The test should also include a question, and a section for responding, in which employees can list the five persons to whom they could report harassing behavior or concerns. Once a company has this post-training test, it can grade the test to determine that all employees do in fact know to whom they can report concerns, and then file the test for future reference, if necessary.

Investigations Training

Finally, HR itself needs to know how to field the complaints, questions, and concerns that employee’s voice. This is the last component of this four-tiered system for protecting employees and the company. Invariably, when training is provided to supervisory staff regarding their obligations to monitor the workplace, and the importance of a thorough, complete, and objective investigation, they are more likely to turn any complaints over to human resources. They recognize in their education process the importance of having a professional handle this involved and painstaking process. Employees who have been trained in the company’s policies have received an important message from the company: “we are here for you,” and “we want to hear from you.” As a result, employees are also likely to make more calls to human resources requesting assistance or relaying complaints. Make sure everyone on the HR staff knows what to do when a complaint is filed. Following is a model I use at jury trials to explain to the jury that the employer either did, or didn’t do what is required of them:

Training — The Equal Employment Opportunity Commission recognizes training as an “effective remedy” to a complaint of harassment or discrimination. They state that the employer must “take all steps necessary to prevent harassment from occurring, such as affirmatively raising the subject.” Most attorneys recommend that training be repeated annually on this subject.

Policies & Procedures — When a complaint is raised, the Human Resources professional should review the company’s policy on harassment and discrimination with both the accuser and the accused, for clarification.

Investigation — Despite the absence of witnesses, each complaint must be followed with an investigation. The complainant and all witnesses must be interviewed. If there are no witnesses, random open-ended questions should be asked to see if anyone else has experienced or observed harassing or discriminatory behaviors.

Immediate — The investigation must be immediate. Once the employee has broached the subject, the clock is ticking for Human Resources.

Thorough — The investigation must be thorough. The alleged perpetrator and his or her witnesses must be interviewed, supervisory staff must be interviewed, anyone who might have information about the issue, must be interviewed. There is no such thing as a he said/she said issue. Evidence can always be found to corroborate one perspective or the other.

Complete — Once you begin interviewing employees, you will find conflicting testimony. Each witness who has conflicting testimony must be re-questioned regarding the conflicting stories.

Objective — Under no circumstances should the Human Resources professional engage in behavior that appears to be protective of the company, protective of the complainant, or protective of the alleged harasser. Each entity should be treated with equal care and concern, to maintain the appearance of objectivity. If Human Resources is concerned about the appearance of their objectivity, an outside expert should be hired.

Come to a Conclusion — At the end of the investigation, the Human Resource professional is required to come to some kind of conclusion. Sometimes, the Human Resources professional is still unable to confirm that the harassment occurred, or to confirm that it didn’t occur. The biggest mistake that they can make at this point is to conclude nothing. The conclusion, in this case, is inconclusive, and must be communicated to those with a “need to know.”

Communicate to the Alleged Harasser and the Alleged Harassee ̵ It is required that the conclusion reached by the Human Resources professional be communicated to the complainant and the alleged harasser. As well, the complainant has a right to know, and will want to know, that the company took serious action (remedy) against the harasser. As well, the persons who supervise the two persons should be informed of the results of the investigation, so that they can continue to monitor the workplace and guard against repeated behaviors, as well as guard against retaliation. The Human Resources professional should ask the complainant what actions they would like to see the company take to remedy the problem (while stating that they cannot promise to meet the request). Then, if at all possible, the company should take the remedy that the employee requested, and document that they did so.

Guard Against Retaliation — In the Los Angeles area, 48% of all employees who file discrimination and harassment charges against their employer, also file charges of retaliation. That is, something changed about the complainant’s workspace or assignments after they filed their complaint with Human Resources. Even if the change appears to be miniscule, or unimportant, the employee can perceive the change to be significant, and the complainant’s attorney can convince a jury of the complainant’s peers that the change was very important. The most ridiculous (but successful) claim of retaliation was that the complainant was transferred from an office where the employee had a credenza, to an office where the employee had no credenza. Nothing should change about the complaining employee’s work environment for six months after their complaint.

Document — Document the date and time of the complaint, the date and time of your interviews with each witness, party to the complaint or supervisor. Send the results of your conclusions in writing to the two parties involved. Document your advice to the complainant about reporting any retaliation to you. Document your advice to the alleged harasser with cautions about retaliating. Document your efforts to train and retrain. Document your reissue of the company’s harassment & discrimination policy. Document the trips you make back to the workplace to check with the complaining party and their supervisor, to make sure that no further harassment or retaliation has occurred. You have heard it before, document, document, and document.

This is a time of great introspection and consideration about what it means to be human, and what it means to be an American. These moments of reflection provide companies, and their HR professionals, with an opportunity to re-establish their commitment to a work environment where all people, all religions, and all contributions are valued. 

ABOUT THE AUTHOR

Monica Ballard is the president of Parallax Education (www.parallaxed.com), a Santa Monica, California based company whose mission statement is “Helping Companies Avoid Liability to Employment Litigation.” Parallax Education provides training products and trainers to corporations on subjects related to employment law.

riskVue | The webzine for risk management professionals
December 2001