Katz, Marshall & Banks partner Debra Katz and associate Aaron Blacksberg authored an article in Law360 entitled, "Racial Harassment and Retaliation: the Employee Perspective." In the article, Ms. Katz and Mr. Blacksberg discuss how racial harassment in the workplace requires greater public attention, particularly in light of recent social and political developments like the U.S. presidential election. The authors examine statistics provided by the Southern Poverty Law Center (SPLC) and the Equal Employment Opportunity Commission (EEOC), and note, "The significant increase in hate groups and acts of bigotry, coupled with already rising tensions around political issues like immigration and racial justice, have manifested in the workplace." The authors look at two recent high profile racial harassment lawsuits against Tesla and Fox News, as well as the upward trend in racial harassment cases in our firm's own case load. Ms. Katz and Mr. Blacksberg provide suggestions for employees experiencing racial harassment and for their employers, and conclude by stating, “Employees must be able to go to work with the knowledge that their employers will not tolerate race-based and other discriminatory harassment in the workplace, and that means having strong reporting procedures and effective anti-retaliation policies.” Check out the full article below or click here.
Racial Harassment And Retaliation: The Employee Perspective
Racial justice issues have received much-deserved attention in recent years. Long-simmering issues such as police brutality, racial profiling and mass incarceration have captured public focus, through protests and in elections at all levels of government. By comparison, racial harassment in the workplace has received relatively little attention, though it continues to be disturbingly prevalent in 2017. This article examines this underreported issue in light of the broader societal and political context of 2017 America, statistics from the U.S. Equal Employment Opportunity Commission (EEOC), recent high-profile racial harassment lawsuits, and cases in our own legal practice.
America in 2017: Continuing and Emboldened Discrimination
Since the start of the 2016 election campaign, and particularly since the election itself, hate groups and hate crimes have increased at an alarming rate in the United States. The Southern Poverty Law Center (SPLC) tracks statistics around hate groups, and reports a “near-tripling of anti-Muslim hate groups” since 2015, from 34 to 101. A news report on one anti-Jewish and anti-Muslim group, church militant, quoted the group’s leader: “The enthusiasm level has really taken off in this last year ... It’s really off the chart.” That report also discussed a recent murder of an Indian man in Kansas where the murderer yelled, “get out of my country”; threatening letters to American mosques; and vandalism of multiple Jewish cemeteries. In the same article, a leader of a secessionist organization, designated a hate group by the SPLC, stated, “What you’re seeing now is that a lot of people feel more emboldened – because someone like Trump is in the White House — to speak their minds on topics that formerly had been taboo.”
The significant increase in hate groups and acts of bigotry, coupled with already rising tensions around political issues like immigration and racial justice, have manifested in the workplace. In addition, employees and employers have grappled with increasingly intersectional issues, such as discrimination based on both race and politics. In two recent incidents, employees were fired for showing solidarity with Black Lives Matter — in one case, a Florida public defender wearing a Black Lives Matter tie; in the other, a California school teacher wearing a Black Lives Matter pin to class. The intersecting nature of politics and race will continue to have implications for employment decisions everywhere, particularly in the current political climate.
Because of the current high-level of interest in political events and racial issues, it is unrealistic to expect employers to prevent political conversations and conversations about race from happening in the workplace. Recent surveys of employers have shown that the election has led to a general increase in “tension, hostility and arguments among co-workers,” and employers should take this moment to revisit or create clear diversity and inclusion policies, as well as guidelines for talking about politics at work. In maintaining a healthy work environment that involves political discussion, it is important for employers to foster productive conversations about racial issues in an ongoing, proactive manner rather than waiting for problems like workplace harassment to force those conversations. In addition, employers need to be mindful of the importance of workplace attire guidelines, as more and more employers without dress codes have been confronted with complaints of racially hostile work environments involving attire like “Make America Great Again” hats or apparel containing images of the Confederate flag. Companies must develop reasonable and sensible dress code policies to prevent hostile work situations from occurring.
EEOC Statistical Context
Statistics and reporting from the EEOC provide helpful context about the frequency and severity of race-based harassment in the United States today. The EEOC’s overall charge statistics show that charges of race discrimination have increased slightly in the past 20 years, following a similar upward trend in the number of all charges. Notably, race discrimination charges increased between fiscal year 2015 and FY 2016, after decreasing slightly each of the previous five years.
The EEOC has published extensive quantitative and qualitative data on racial harassment, discrimination and retaliation as part of several recent initiatives on these topics. In June 2016, the EEOC released a comprehensive report representing the culmination of a broad study on workplace harassment. This report is a “must read” for employment lawyers. For its FY 2015, the EEOC reported race-based harassment as the largest category of harassment charges among federal employees and the second largest category of harassment charges among all other employees. In addition, the EEOC publishes a sample list of enforcement cases involving race discrimination, including racial harassment cases, as part of its ongoing "Eradicating Racism and Colorism from Employment (E-RACE)" initiative. These cases are rife with acts of racial epithets and other race-based harassment including nooses and racist graffiti appearing in the workplace.
Recent Racial Harassment Lawsuits in the News
Two recent high-profile lawsuits may bring needed attention to the issue of racial harassment in the workplace. First, on March 27, 2017, DeWitt Lambert, an African American electrician, sued Tesla in California state court for racial harassment and discrimination. According to the complaint, Lambert started working for Tesla in June 2015, and “almost immediately” dealt with harassing conduct from coworkers, who frequently took Lambert’s tools or phone without permission and otherwise tried to make his work difficult. Within two months, the harassment escalated and Lambert’s colleagues started using racial epithets around him, such as the N-word, making gang signs toward Lambert, and making lewd, race-stereotyped comments about Lambert’s genitalia.
Lambert repeatedly asked his colleagues to stop harassing him, then took the matter to his supervisor and to company human resources in the fall of 2015. His supervisor told the harassing employees to stop using the N-word, and a human resources representative said the company would investigate the matter. Despite repeated requests from Lambert, the company, according to Lambert’s complaint, refused to transfer him to another location while investigating the matter. The harassment continued unabated, and while the company was supposedly investigating Lambert’s complaint, the company promoted four of Lambert’s alleged harassers. The company continued to refuse Lambert’s request for a transfer and at times refused to give him required breaks, later causing him physical injury.
The company finally granted Lambert a transfer in April 2016 after many months of transfer requests. However, Lambert alleges that he was given written warnings several times in 2016 before and after this transfer for conduct like eating a snack while working and posting a picture of himself outside the Tesla plant on his Facebook page — conduct that other employees did regularly and for which the company did not take disciplinary action. Lambert complained about these written warnings to company human resources and in early July 2016, showed a human resources representative a video from fall 2015 of his harassers threatening him and his family with violence. The company took no further action to investigate Lambert’s report. In a press statement after Lambert filed his lawsuit, Tesla said that the video was “disappointing and contrary to our values,” but that they did not continue investigating because “the HR representative who had led the prior investigation left the company” shortly after the video surfaced “and didn’t hand off the investigation to anyone else.”
Since the summer of 2016, Lambert alleges that he faced continued and escalating retaliation, including a recent company investigation of Lambert after his harassers accused him of threatening them with physical violence. As of the time Lambert filed his lawsuit, a Tesla representative stated that it had previously suspended Lambert with pay pending the outcome of this investigation. In his complaint, Lambert alleged that these accusations against him are false and “part of a campaign to threaten, bully and smear [him] in an effort to victimize the victim for exercising his rights.” Tesla has yet to respond in court, but it would be unsurprising if the company simply denies Lambert’s allegations or finds further ways to try and lay blame on Lambert.
A day after Lambert filed the racial harassment suit against Tesla, Tichaona Brown and Tabrese Wright, two black employees in the payroll department at Fox News, filed a racial harassment suit in New York state court, alleging that Judith Slater, the company controller, created an atmosphere of pervasive racial discrimination and harassment. On April 4, 2017, Monica Douglas, another employee in the department, joined this lawsuit. In the amended complaint, the plaintiffs provide numerous examples of the “years-long relentless racial animus” to which Slater subjected them. These examples include:
- Slater “ridiculed black employees by mocking stereotyped speech” and “forced black employees to practice saying [various words] correctly in front of white employees.”
- Slater said she only went past 90th Street in Manhattan when “accompanied by a black person” out of fear for her safety.
- Slater repeatedly referring to the payroll department, which has many black employees, as “urban.”
- Slater asked black employees: “Why are all black men women-beaters?”
- Slater called the Black Lives Matter movement racist and “wondered what would happen if there was a parallel ‘white lives matter’ movement.”
- Slater told Douglas she had “black eyes” and compared that to the blue eyes of the “Aryan race.”
- Slater mocked the plaintiffs’ hair, and “regularly and mockingly rubbed Douglas’ hair in order to feel its ‘texture.’”
- Slater asked Wright if her children shared the same father.
In addition to this conduct, Slater admonished the employees, “Do not bother going to HR ... I am HR” — because of Slater’s friendship with Denise Collins, the Fox News head of human resources.
Despite Slater’s warning, the plaintiffs did complain to Collins and to Dianne Brandi, Fox News’ General Counsel, starting in late 2014. The company took no corrective action and in mid-2015, Brandi told Douglas that Slater “will not be fired because she knows too much” — referring to “improprieties committed by former Fox News CEO Roger Ailes and former Fox News CFO Mark Kranz.” Many of those “improprieties” have since become public. Fox News finally terminated Slater’s employment in March of 2017, more than two years after the plaintiffs’ initial internal complaints in response to a threat by the plaintiffs’ attorneys of the impending racial discrimination and harassment lawsuit. However, the plaintiffs allege that Slater’s termination was too little and too late; Fox News had already engaged in retaliation by terminating Brown and demoting Wright for complaining of discrimination and harassment, while tolerating a racially hostile work environment.
High-profile racial harassment cases like these are rare, but racial harassment in the workplace is not. That these plaintiffs have come forward so publicly against major companies like Tesla and Fox News is more notable than the harassment they have alleged. Too often in our practice, we meet with employees who have faced such egregious harassment and do not come forward, either internally to their employer or publicly, out of fear of retaliation and despair that reports will go unheeded. Indeed, their concerns of retaliation are reasonable. As was the situation with the plaintiffs in both the Tesla and Fox News cases, companies often respond to well-documented and egregious acts of racial harassment by taking disciplinary action against complainants or by terminating them for pretextual reasons, such as job eliminations.
Lessons and Advice from Our Practice
Our firm has seen a significant increase in egregious race-based harassment cases in the last year. We have seen an uptick in cases where coworkers and supervisors have engaged in racial harassment and the employer has failed to take action in response to a harassed employee’s complaint. Or worse, the company has punished that employee. We have had African-American clients who report being called racial epithets including the N-word, “coon,” “boy” and “ape,” and report being subjected to racist jokes, graffiti and music. In one case last year, our client was threatened with physical violence and was told by a white colleague that life for him would be different once Donald Trump became president. In another case, a Middle Eastern client was called a “terrorist” and a “bomber,” and colleagues suggested he was a member of ISIS or the Taliban. In each of these situations, the employees promptly reported the harassment and their employers retaliated against them for doing so.
We have found that employers are often unwilling to believe employees who report racial harassment and often retaliate against them for insisting that action be taken. We also see situations where business owners and supervisors condone or even participate in harassing their employees. The fact that someone has come to our firm usually means that internal company mechanisms for resolving these problems, if those mechanisms exist at all, have failed. Even when we become involved in these situations and attempt to resolve the matter privately, some companies still refuse to investigate or take steps to remedy harassing and retaliatory behavior. Or, in some cases, the employer further retaliates against the employee in response to the employee’s retention of counsel. An employer’s failure to address the issue internally before a termination, or privately through negotiation, often leaves an employee with few other choices but to suffer quietly, file an administrative charge with the EEOC or state agency, or file a lawsuit.
We advise our clients to keep a contemporaneous account of both the racial harassment itself as well as whatever steps their employer takes, if any, to investigate or otherwise address racial harassment complaints. Employees should carefully document these issues to provide a comprehensive report to the company and, as is often necessary, to support a legal claim if the employer fails to address the issue and engages in retaliation. Indeed, increasingly, clients come to us having already recorded audio or video of such incidents or photographed the evidence. We also hear frequently from clients that they did not even consider reporting harassment for a simple reason: there is no point. Many have heard stories where the company does nothing or employees are fired in retaliation for reporting harassment, so they stay quiet. With the risk of retaliation in mind, it is especially important for employees to be well-informed about their employer’s policies for reporting racial harassment complaints and to avail themselves of those avenues. Companies should promulgate policies that define what behavior constitutes racial harassment with the same level of detail as they typically do with sexual harassment policies. They should also provide racial harassment training on a regular basis and make clear that racial harassment is prohibited in the workplace.
It is our hope that high profile-racial harassment cases such as those against Fox News and Tesla will spur employers to give this pressing issue the attention it requires. Employees must be able to go to work with the knowledge that their employers will not tolerate race-based and other discriminatory harassment in the workplace, and that means having strong reporting procedures and effective anti-retaliation policies. Given the current social and political climate, employers, now more than ever, need to live up to their responsibility to their employees and to society.
 This article contains ideas drawn from a paper that the authors submitted to the American Bar Association’s 2017 National Conference on Equal Employment Opportunity Law, and incorporates information from a conference panel discussion, in which Debra Katz participated, on racial harassment in the workplace.
 “Hate groups increase for second consecutive year as Trump electrifies radical right,” Southern Poverty Law Center (Feb. 15, 2017), https://www.splcenter.org/news/2017/02/15/hate-groups-increase-second-co....
 Patrik Jonsson, “Trump and the rise of the extreme right,” Christian Sci. Monitor (Feb. 27, 2017), http://www.csmonitor.com/USA/Politics/2017/0227/Trump-and-the-rise-of-th....
 J.D. Gallop, “Brevard public defender fired, says Black Lives Matter tie raised eyebrows,” Fla. Today (Feb. 3, 2017), http://www.floridatoday.com/story/news/2017/02/03/brevard-assistant-publ....
 Mackenzie Mays, “A teacher wore a Black Lives Matter pin to class. Now he is banned from a Clovis school,” Sacramento Bee (Dec. 3, 2016), http://www.fresnobee.com/news/local/education/article118591388.html.
 Patrice Borders, “Civility in a Post-Election Workplace,” MWH Law Group (Jan. 31, 2017), http://mwhlawgroup.com/civility-post-election-workplace/.
 See Kira Hudson Banks, “How Managers Can Promote Healthy Discussions About Race,” Harv. Bus. Rev. (Jan. 7, 2016), https://hbr.org/2016/01/how-managers-can-promote-healthy-discussions-abo....
 See Allen Smith, “Address Offensive Attire with Dress Code, Nondiscrimination Policy,” Soc’y for Hum. Resource Mgmt. (Sept. 10, 2014), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-l....
 For the EEOC’s breakdown of the number of EEOC charges by type and year, see “Charge Statistics (Charges filed with the EEOC) FY 1997 Through FY 2016,” https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.
 See Chai R. Feldblum & Victoria A. Lipnic, “Select Task Force on the Study of Harassment in the Workplace,” EEOC (June 2016) available at https://www.eeoc.gov/eeoac/task_force/harassment/report.cfm.
 For the EEOC’s E-RACE Initiative case summaries, see “E-RACE: Significant EEOC Race/Color Cases (Covering Private and Federal Sectors),” https://www.eeoc.gov/eeoc/initiatives/e-race/caselist.cfm.
 The statements here about this case, where not otherwise cited, are drawn from the plaintiff’s complaint in Lambert v. Tesla, California Superior Court, Alameda County, No. RG17854515 (March 27, 2017), available at https://mma.prnewswire.com/media/483152/California_Civil_Rights_Law_Grou....
 David Reid, “Tesla rejects racial harassment lawsuit filed by assembly line worker,” CNBC (March 28, 2017), http://www.cnbc.com/2017/03/28/tesla-is-rejecting-a-racial-harassment-la....
 The statements here about this case are drawn from the plaintiffs’ complaint in Brown, et al. v. Twenty-First Century Fox, et al., New York State Supreme Court, Bronx County, No. 22446/2017E (April 4, 2017), available at https://pmcdeadline2.files.wordpress.com/2017/04/fox-race-claims-amended....