Prompt Response to Racial Harassment Prevents Liability

Posted 11-12-2014

With all the attention given to sexual harassment in the news and popular culture, most people do not realize that racial harassment is a more serious problem.  Between 2010 and 2013, 30,580 claims of sexual harassment and 34,160 claims of racial harassment were filed with the federal Equal Employment Opportunity Commission.  The persistence of racial harassment and discrimination is a sad fact during this 50th anniversary of the Civil Rights Act of 1964.

Employers who promptly react to reports of racial harassment and take immediate corrective action can avoid liability, as illustrated by a recent case.  When Brian Dunkley, an African-American, started a new job, he received an employee handbook containing the company’s anti-harassment policy, and the policy and complaint procedure were discussed during his orientation.  Mr. Dunkley started two weeks of on-the-job training with an experienced co-worker who made many racist comments, including references to the Ku Klux Klan, “black thugs”, and African-American women misusing food stamps.  The co-worker also said that his father belonged to a motorcycle gang, and that if “anybody ever had a problem with his family, that they would be taken care of”.  Not surprisingly, Mr. Dunkley felt threatened.

He reported the co-worker’s statements to his supervisor, and met with the supervisor and two other managers.  His supervisor immediately assigned a new trainer to Mr. Dunkley, and Mr. Dunkley had no further contact with his harasser.  But Mr. Dunkley continued to feel so stressed and uncomfortable that he hated to be at work.  He quit and sued for racial harassment.  Mr. Dunkley argued that management’s response was insufficient, since there was no formal investigation, the supervisor never reported the matter to Human Resources, and the harasser was not disciplined.

The trial court granted summary judgment to the company, and the appellate court affirmed, saying that as soon as his supervisor learned about the co-worker’s “reprehensible behavior” he took immediate action to protect Mr. Dunkley from further harassment by assigning him to a new trainer.  While, as the court noted “unquestionably, one could suggest improvement in the depth of the process or the supervisors’ training on these issues”, more important was the fact that, as Mr. Dunkley admitted, after he met with the management team the harassment stopped.
Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J. Super. 366 (App. Div. 2014)

What this means to you:

No one should be subjected to the hurtful things said to Mr. Dunkley.  But an employer that has anti-harassment policy, training on that policy, an effective complaint procedure, and takes swift, effective action that stops harassment can prevent liability.

In this case, the court emphasized the importance of having an anti-discrimination policy and training for both rank-and-file employees and supervisors.  Fair Measures provides live, instructor-led harassment prevention training for managers and employees, both in the classroom and virutally.  We use videos, case studies, polls questions and extensive Q&A to help participants learn about laws and company practices for harassment prevention so they can maintain a respect-filled workplace for all.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:35+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.