When Worlds Collide

On March 31st, the 4th U.S. Circuit Court of Appeals (covering MD, VA, WV, NC, and SC) overturned a lower court's ruling and found that a male Muslim employee had "suffered severe and pervasive religious harassment in violation of Title VII."  

In this case, the employer has provided the employee, Ingram, with a number of religious accommodations.  The employer was permitted to use a private room for short prayer sessions that were required by his faith; he was permitted to attend a  weekly congregational prayer session from 1:00 - 1:45 p.m. on Friday afternoons; the employee also wore a beard and kufi (traditional Muslim headgear for men). 

Despite the employer's actions, it was predominantly the uncorrected behavior of the employee's coworkers that lead to litigation. The court found that the employee was regularly subjected to religious epithets such as "Taliban" and "towel head."  The employee was questioned about his allegiance to the United States. Indirect harassment occurred too: coworkers would hide Ingram's time card while he was engaged in prayer; the would unplug his computer, write "dumb ass" on his business card and leave cartoons depicting persons dressed in Islamic or Muslim attire as suicide bombers.  When the employee reported these behaviors to the HR Specialist, who subsequently spoke to the manager, a team meeting was held and the behaviors did subside for a time. But they started again a short time later.

The company's position was that the employee was paranoid, the behaviors were a result of his poor work performance and difficult personality and not his religion, and the company did take reasonable care to correct the behavior, which was  successful for a period of time.

The Court noted that "Any of the above incidents, viewed in isolation, would not have been enough to have transformed the workplace into a hostile or abusive one," and "[c]ompanies cannot, of course, be charged with cleansing their workplace of all offensive remarks." But the Court also held that, "Although similar pranks were played on other...employees, there is evidence suggesting that Ingram suffered such harassment more often than others and more likely because of his religion." EEOC v. Sunbelt Rentals, Inc.

Lessons Learned?  The December 2007 edition of this newsletter pointed out a case that illustrated that workplace bullying can create legal liability.  This just emphasizes that point.  Here we have an instance in which coworkers pull pranks upon a coworker e.g., unplugging the employee's computer, hiding his time card.  As the court noted, in isolation those activities may not constitute unlawful harassment.  But when unkind, uncivil, inappropriate workplace conduct is combined with even isolated, sporadic or periodic comments or remarks that are based on the individual's age, race, religion or membership in any other legally protected class, it may at least give rise to a perception or inference that they all share the same basis. 

TIPS? Provide your harassment prevention training in a broader context.  Help employees understand that intent is not an element of unlawful harassment.  Even "good natured ribbing" can be perceived as having an ill intent, which can lead to claims of unlawful harassment.  Provide supplemental training to your managers; remind them how critical it is that they promptly respond to concerns or complaints.  Include HR representatives in the training to demonstrate that it takes a team approach to monitor the entire workplace and is best done when individual department managers work in tandem with HR.

   Hot Hits!! Education Corner

Public Presentations

Wednesday, May 21st, "Employment Law, Legislative & Regulatory Update," presented for the MC SHRM Chapter, Rockville, MD 6:00 - 8:15 p.m.

NEXT WEBCAST!

Wednesday, May 28th, "Employment Testing & Selection Procedures" 10:00-11:00 a.m. EST. Did you miss last month's or the 2007 webcasts? They are archived and you can access them from the website as well!

All webcasts are pre-approved by HRCI for 1.0 Strategic credit!

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May's Client Training Programs

"A Day of Learning" -  A Leadership Development Program

"Enhancing Working Relationships"

"HR & the Law for Managers"

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OSHA Logs - Come on Down!

If you are a covered employer that was required to post your OSHA Form 300A you can now take it down.  These logs are to be posted from February 1st through April 30th of each year.  Stay tuned for next year's reminder!

Case Closes on the Cat's Paw

 A human resources manager accepts the recommendation of a supervisor to fire an employee.  The HR manager has never met the employee and does not know the employee's race.  The supervisor does. Can the company be held liable for racial discrimination when the person who made the final decision to fire (the HR Manager) had no knowledge of the employee's race? Some courts have held "Yes."  Subordinate bias liability has been given the name "cat's paw" based on the fable in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts from the fire one by one burning his paw in the process, the monkey eagerly gobbles them up, leaving none for the cat. Today, the term "cat's paw" refers to "one used by another to accomplish his purposes."  

But what if the HR manager does not rely exclusively on the supervisor's recommendation but conducts an independent investigation of the information provided by the supervisor -- can the company be held liable then?  It depends (of course)!  The U.S. Supreme Court was scheduled to hear this matter and render a decision but the case was settled out of court. EEOC v. BCI Coca-Cola Bottling Co. 

So until next time...

1. Consider always having internal investigations conducted by a human resources or other representative outside the employee's chain of command. This will reduce the chances for any bias in the investigation;
2. When conducting interviews and gathering information, the investigator should attempt to verify statements and information with tangible evidence e.g., documentation, records, etc.
3. Adverse employment decisions should not be made in a vacuum; decisions should be considered in tandem with HR, management, executive team members, and/or legal counsel to further reduce the chance for intentional or unintentional bias.

  Spotlight! 

Following a full day presentation of "Managing Within the Law" for her management team members, Lauren Mize, HR Generalist for Legg Mason wrote, "This was a fantastic class -- incredibly relevant information for the audience of managers! Your ability to cite court cases and rulings behind the many employment laws added more color to WHY the laws are the way they are. I look forward to spreading the word about this class to other managers!" Thanks Lauren!  Looking for an interactive, engaging, information and educational program for your management team members?  Call FiveL Today!