Mar 30, 2020 in Informative

Harassment

Introduction

The issue of harassment at the workplace is an issue that has been undergoing for a long time. The nature of harassment varies across different places of work, and scenarios but one of the most common is racial harassment which might involve snide remarks about one's race and the implication that since one is of a particular race, he/she is lazy or cannot perform certain duties.

Most of the times, this harassment comes from fellow employees who, often with scant understanding of the law, make racially charged jokes in a bid to either sound funny or in some cases, aimed at more ominous circumstances of making their fellow employee feel inferior or out of place. These circumstances applied in the case of Swinton v. Potomac Corp where Mr. Swinton endured persistent racial harassment by his employees, including racial epithets and jokes. 

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Background

Historical Overview of the Topic

The history of harassment by race in the workplace in the US traces its origin to the uniquely racial history of the country. For more than 200 years, harassment of non-white people at the workplace was not only socially acceptable, but was also legally permissible. However, this was to change with the passage of the Civil Rights Act of 1964. Among other provisions, Title VII of the law makes it illegal for one not only to discriminate against any employee by color but also to harass those. The law covers the employer, fellow employees, and third parties. The law also disallows the creation of hostile working atmosphere at the workplace. According to Parker, however, the more specify law on the harassment at the workplace began to develop after 1971 when the court in the case of Rogers v EEOC with the development of the harassment doctrine that allowed for the extension Title VII to cover harassment at the workplace

Facts that Led to the Case

In the case of Swinton v. Potomac Corp, Mr. Troy Swinton got employment in a company the uncle of his fiancée; Jon Fosdick used to work. The company was the US Mat which was then acquired by US Potomac. Among the more than one hundred and forty employees at his workplace, Troy Swinton was the only one who was Black. Mr. Swinton had listed the fiancée’s uncle as one of his references in the application from the nib when he learned about it from his fiancée. 

However, after Swinton got the job, things turned for worse for him at the workplace. While at the workplace, Jon Fosdick, who was a supervisor in another section of the workstation would regularly pass by Swinton’s station and while there make racially charged jokes about black people. Moreover, Swinton’s supervisor heard the racial jokes and epithets that Jon Fosdick made, and ignored them. In one instance, the supervisor, Pat Stewart also acknowledged making racial slurs himself, while the other employees would also sometimes make such jokes at the expense of Swinton.  Although the employee regulations provided that employees should have tried to report any instances of harassment to their supervisor or the president of the company if the supervisor was himself/herself participating in the epithets, Swinton did neither. His explanation was that the supervisor witnessed the harassment himself, and in some instances, laughed at the racial jokes. As for the president, Swinton did not know who he was, and could not thus inform him about the harassment. 

Resolution of the Issue

Unable to bear it any longer, report the incident to the superiors or confront Jon Fosdick, Swinton quit his job. He also sued both the company and the Jon Fosdick. Among the issues that arose in the case was the reason why the Swinton did not confront the person who was routinely harassing him on racial grounds. Another issue was why he never reported the issue to his supervisor or the president as had been noted in the employee regulations. Moreover, there were also questions why, in spite of the racial epithets that Fosdick kept on making towards Swinton, the two would socialize both at the workplace and outside. However, the jury found that there was a case of racial harassment at the workplace. Secondly, circumstances had been such that it was impossible for the plaintiff to report the matter considering that the workplace had a culture of racial harassment including making jokes about other racial groups such as Jews. The court awarded him a five thousand, six thousand and twelve dollars in back pay, thirty thousand dollars for the emotional distress the company subjected him to for not reining the racial epithets and one million dollars in punitive damages. 

Current Law

The Law and Legal Principles

The law on racial harassment has evolved from its rudimentary form before the Civil Rights Act, 1964 to the current status. However, unlike other laws that deal with employment, there is no federal statute that specifically deals with the issue of harassment on racial lines at the workplace. Harassment law gets its basis from Title VII of the Civil Rights Case of 1964. In the statute, Title VII prohibits any discrimination on the basis of race, color and national origin among others. The law covers federal as well as state governments and local authorities, public and private employers. In cases where a supervisor of an employee harasses him/her, the company is legally liable for the harassment.

Because the Congress did not specifically provide a law that would have disallowed racial harassment the workplace, the courts have developed the Title VII to be wide enough to cover harassment and not just overt discrimination. Until the 1970s, the law on racial harassment had not developed substantially. The case of Rogers v EEOC was the first to recognize the harassment doctrine. The case recognized that, based on Title VII of the Civil Rights Act, racial harassment constitutes a form of illegal discrimination at work as far as it constructs a hostile working environment. The law on racial discrimination continues to develop even one as seen in the case if Vance v Ball State University where an African American woman sued on the basis that a fellow worker created a hostile working environment. In this case, the Supreme Court further restricted the ability of workers to sue their employers if any of their coworkers racially harasses them by restricting the meaning of the term “supervisor” to those who have the ability to hire and fire employees.  However, Justice Sotomayor on the dissent noted that the definition should have been wider to include those people who oversee the employee’s daily work. This shows the complexity of the issue even among the best legal minds. 

Applying these Principles to the Case of Troy Swinton

The case of Troy Swinton draws from Title VII of the Civil Rights Act. Under the Act, it is illegal to discriminate in the workplace on the basis of race. As it then was, the law had little application for the harassment cases as it asked for overt discrimination. However, the court in Rogers developed the law to include a hostile working environment as being part of employment discrimination. It is apparent from the facts in the Troy Swinton case that the actions of his fellow employees made the workplace hostile. The Swinton case also avoids the legal barrier created by the Supreme Court in the case of Vance v Ball as it while there was a question of whether the supervisor knew of the harassment and processed it himself, it was not central to the case. Nevertheless, in this case, the court also noted the complicity of the supervisor is awarding the damages. 

How This Topic is Related to Employment Law

Most people can associate labor law with aspects of outright discrimination as it can lead to people failing to get hired, lose promotions, or get fired because of their race. In the case of harassment, it is more covert, and thus, some people may not even know that what the harassers are doing is illegal, although it might be manifest. The issue of harassment regarding race manifests itself regarding employment law in several instances. The first is that it is a form of covert discrimination, especially when practiced by people who hold a certain level of authority in the workplace. For instance, if a supervisor singles out a particular person in the workplace for a volley of racially charged jokes, this is akin to discrimination. 

Secondly, the workplace should be conducive to all employees. However, in some cases, the management, junior supervisors or co-employees can make working in a certain area unconducive and stressful. This includes in cases here employees use epithets to describe their fellow employees in their presence, or similar language that, whether or not it is meant to make the coworker feel uncomfortable, out of place, or threatened because of the color of his/her skin, ends up doing so. Consequently, since employment law requires working places to be as conducive as possible, harassment based on one’s race by fellow employees co-joins the harassment at the workplace with employment law. 

Suggestions to Prevent the Problem and Suggestions of Best Practices

Prevention of Racial Harassment at the Workplace

The larger problem at issue here is that more than half a century after the Congress passed the Civil Rights Act, discrimination in the workplace, and not just racial discrimination is still perverse. In the contemporary times, many employers are afraid of legal suits from employees and the resultant bad publicity that would result from them. Consequently, most employers have a strict policy against overt discrimination. The problem, however, is that these policies do not seem to go far enough as concerns the issue of the harassment especially by fellow employees and their supervisors. 

Moreover, in most cases, the workplace environment makes it impossible to report instances of harassment. Sometimes, employers want the employees to furnish some information that they might not have as evidence, which leads to some employers sometimes dismissing credible complaints when they should deal with them. Another issue is that, in a workplace where an employee joins a workforce that was already not diverse, it is possible that he finds a culture of racially charged jokes already in place, which makes the changing of such a social environment challenging as sometimes the supervisors themselves are part of the problem. 

Lastly, there are still employers who themselves engage in practices that one can deem to be racially discriminatory and racially harassing. Such companies might also retaliate against those who report such instances. One of the most prominent in recent times is the DHD Ventures Management Company Inc. which was forced to pay forty thousand dollars to settle a case in which the company fired two black employees for complaining about the racial epithets they faced from a fellow employee who was white. This proves that the larger problem is not just hostile or naïve coworkers, but also the inability of the employers to act on such issues, and in some cases, retaliation by the employers. 

Best Practices

There are several organizations from which one can choose exemplary policies as regards the racial harassment at the workplace. Not surprisingly, one of the best places which sound policies is the US Department of Labor. If the employer, in this case, would have put some of the policies that the US Department of Labor has in place, it could have avoided the issue. First, the US Department of Labor. The department treats any case of harassing behaviors as misconduct. While most organizations have to wait until the harassing conduct is the level that can be legally proven under Title VII, i.e. showing a pattern of offense conduct, the Department does not do so. It seeks to act before such behavior is so prevalent that it brings about a hostile environment by cautioning the employee if another employee reports such behavior. If the company had such a practice, it would be impossible to have such a pervasive racial harrying conduct. 

Wal-Mart has one of the best policies regarding racial and other harassing behaviors. In its policy, it disallows any form of harassing conduct. It moreover goes further and states that any form of harassing behavior, whether "welcome or not welcome" is not allowed in the workplace. Moreover, its policy also explains that it does not matter if the people so accused of the behavior are of the same race or not. Consequently, a black person hurling racial epithets at another black person would be considered a form of harassment under this policy. This will go a long way to curbing such behavior. 

Another privatize that would also greatly assist the company in the ensuing that there are fewer cases of racial harassment at the workplace is to encourage anonymous reporting of such.  This would ensure that in a case where another employee notes a racially harassing behavior, even if it is not directed at that him/her employee. This is a policy that ExxonMobil encourages. This will ensure that the company deals with behavior that later constitutes a harassing conduct the earliest time possible and that the management can identify those who propagate racial harassment at the workplace.   

Another practice that would enable the company to eliminate such instances is to take the superiors response for any behaviors that is racial that they witness from their subordinates, or which employees report to them but they fail to take action a view that ExxonMobil has taken.  This will ensure that the supervisors do not condone racially harassing behaviors as was the case in Swinton. 

Moreover, it would also be advisable to have a person within the Human Resources Department who deal with harassment cases. This does not have to be a person’s who is hired specifically for the role, but a person is approachable and whom the employees can trust. If the company has such an officer, racially harassed employees and their coworkers will be able to report instances of racial harassment. 

What the Employee Could have Done

In the climate that the supervisor fostered at the workplace, Swinton was in a difficult situation. However, he could have taken steps to alleviate the racial harassment he underwent at the workplace. First, because the supervisor was legally mandated, and also mandated by the policy of the company to listen to the complaint Swinton would have made, Swinton could have made the complaint and insisted on the supervisor recording it. Secondly, there was also a provision to go directly to the president of the company in case the supervisor was also engaged in such conduct. Swinton should have made an effort to do so, but he did not.  

How These Issues Impact Your Role As A Potential HR Professional

A human resource professional is supposed to be the link between the organization and the employees. The aim of any human resource professional, should consequently, not only aims to ensure maximum productivity of the employees but that they also have a safe and non-hostile working environment. Consequently, the role of an HR professional seems to increase in scope as regards not just the prevention of discrimination, but also harassment. Consequently, it should be the duty of the HR professional to track instances of not just discrimination, but also overt and covert harassment. 

Moreover, it seems apparent that the Human Resource departments have to go beyond just establishing policies that are meant to curb racial harassment in the workplace. HR officers ought to ensure that they policies are rigorously enforced. As it is apparent from the Swinton case, simply having a policy does not translate to a safe and non-hostile workplace for all people. Innovative strategies on how to enforce such policies are also needed. Thus, the HR has to ensure that there are mechanisms outside the traditional ones of noting and punishing behavior that is racially harassing and stopping or punishing it before it escalates. 

In some cases, it seems to escape some employees that they ought to respect the diversity in the workplace. It is possible that some employees make jokes which are racial in character without realizing the damage they are causing. Rather than just giving such employees manuals, the role of the HR professionals in the workplace should be extent to training the employees on how to avoid instances of racial harassment. This will go a long way into promoting an inclusive culture at the workplace by encouraging professionalism and respect for individual dissimilarities between different employees.   

Moreover, one of the reasons why a company might experience cases of employees harassing others on a racial basis is a lack of diversity in the workplace. People who have interacted with other races learn the cultural sensibilities around the racial issues and thus avoid instances of acts which are harassment but are not intended to be so. Consequently, the HR professional should have a broad role promoting diversity on racial and other lines. This is to ensure that the workplace is diverse. The HR professional should also ensure that it does not have subjective hiring processes that have a basis on racial stereotypes and covert biases. The interaction between different races at the workplace will reduce instances of racial misunderstandings. 

Conclusion

The essay was an analysis of Swinton v. Potomac Corp, how it relates to employment law, and how it can affect the role of a human resource professional. From the facts of the case, a fellow employee harassed Swinton with the complicity of the other employees and the supervisor for which the jury awarded him damages. The issue falls under Title VII of the Civil Rights Act. Courts have further refined the law regarding racial discrimination as in the case of Rogers v EEOC. Various organizations have put in mechanisms whose aim is to prevent such instances. These include the US Department of Labor, Walmart, and ExxonMobil. As regards the role of the HR professional, the issue of racial harassment means that the work is likely to escalate as he/she seeks to reduce such instances.

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