Supervisor's use of racial epithet costly to employer
From 9/04

A recent decision by the Massachusetts Commission Against Discrimination (MCAD) illustrates the importance of employers having a zero tolerance policy for racial epithets in the workplace.

The case involved a food service company, its employee and a supervisor who directed racial epithets at the employee, threatened to have him fired and took steps to accomplish that end.

A Massachusetts employer is strictly liable for unlawful racial discrimination and harassment by its supervisors, regardless of whether the employer knew or had any reason to foresee or believe the supervisor would engage in such conduct. In this case, the employer's defense, in part, was that the supervisor worked in a different department than the employee, had no actual authority to hire or fire him and, therefore, was not his supervisor. The MCAD rejected that defense, noting that even though he was not the employee's direct supervisor, the general manager had directed the supervisor to have the employee clean a concourse. Because he was authorized to direct the employee's day-to-day activities, the MCAD concluded he was a supervisor.

A more difficult issue was whether the conduct was sufficiently egregious to constitute racial harassment, particularly since the supervisor directed racial epithets at the employee only once. The epithets, however, included the "N" word and were particularly humiliating because they were made in public with customers present.  Noting that the foundation of harassment law rests on the nature and effect of the harassing conduct, not the number of occurrences, the MCAD concluded that the conduct was unlawful racial harassment and ordered the employer to pay the employee damages and attorney's fees of more than One Hundred Twenty-Five Thousand ($125,000.00) Dollars. 

In addition to a zero tolerance policy for racial epithets, employers should regularly train employees, particularly supervisors, about preventing unlawful harassment and avoiding claims and the costs associated with them.

 

0904\Unlawful Racial Harassment in the Workplace.doc