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Subject: All employees are entitled to harassment-free workplaces
This memorandum explores the interactions of four employees in a company break room. Two of the employees are harassing another employee, Jean Paul, about being a French national. A fourth employee meekly attempts to stop the behavior by telling the two to stop and changing the subject, but she takes no direct action to stop the behavior even as the “joking” becomes more personal and aggressive. Jean Paul eventually leaves the break room, and the two employees discuss how what they were doing was all in good fun.
Does this situation constitute harassment? Why or why not?
The situation depicted in the video fits the definition of harassment. First, the two employees are “joking” about a fellow employee’s national origin. In Meritor Savings Bank v. Vinson, the Supreme Court ruled that harassment fits the definition of discrimination under Title VII of the Civil Rights Act of 1964 (Development of sexual harassment law, n.d.), and Title VII includes discrimination based on national origin. (Although this case dealt with sexual harassment, and most discussions in the literature are about sexual harassment, harassment goes beyond sexual harassment (Muskovitz, n.d.) and the two are commonly treated synonymously.) Memorandum Example
Second, the behavior of the two employees and the nature of their comments is “. . . severe . . . enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” (Equal Employment Opportunity Commission, n.d.)
Finally, the relentlessness of the two employees’ behavior suggests that this is not the first time, nor will it be the last (unless addressed), that they will engage in such behavior, making it “. . . pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” (Equal Employment Opportunity Commission, n.d.)
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Jean Paul is white. Can help make a claim of harassment in the workplace?
Jean Paul can make a harassment claim. Other than color, the characteristics covered under the Civil Rights Act of 1964, as amended (race, religion, sex, age, disability, genetic information, or, as in this case, national origin) are “color blind,” meaning the color of a person’s skin has nothing to do with the issue at hand. To suggest otherwise would be to suggest that men could not file sexual harassment claims or Christians could not file claims of religious discrimination.
But men (The Huffington Post, 2011) and Christians (Bennett-Smith, 2012) do makes claims of harassment and discrimination. The Equal Employment Opportunity Commission (EEOC) brought both cases cited on behalf of the employees. And as to the former issue (men bringing claims of harassment), EEOC data indicate that in 2010, 16 percent of harassment complaints were brought by men. (The Huffington Post, 2011) Memorandum Example
Although anti-discrimination laws were created with an eye toward minorities, the effect of those laws must be without regard to minority status. That reasoning – and the Equal Protection Clause of the Constitution – is why the Supreme Court struck down affirmative action at the University of Michigan. (Gratz v. Bollinger, n.d.)
The approach used to increase the number of minority students admitted to the University of Michigan provided an unfair advantage to those students at the expense of white students, in the opinion of the Court.
Does ‘Dana’ help or hinder the situation?
Dana’s behavior does not help the situation. Her efforts to provide Jean Paul reassurances or ways to “fit in” merely provide fodder for the two harassing employees. And although she did not actively hinder the situation, her choice not to engage a supervisor more senior to the one in the room allowed the situation to continue for an uncomfortably long time. Memorandum Example
Does your understanding or perspective change, knowing that the supervisor is in on the ‘fun’?
Knowing the supervisor was one of the two employees “joking” changes my perspective. The supervisory should be the one stopping such behavior, not encouraging and participating in it. “Managers and supervisors are the front line when it comes to managing employee . . . needs from work.
First, and most importantly, you do not want a workplace culture that allows any form of harassment to occur. Out of your commitment to your employees and your company, harassment, in any form, is never to be tolerated.” (Heathfield, n.d.) Memorandum Example
EEOC singles supervisors out for their role in harassment. “If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: (1) it reasonably tried to prevent and promptly correct the harassing behavior . . .” (Equal Employment Opportunity Commission, n.d.)
As previously stated, the nature of the two employees’ conduct, especially with the support of a participating supervisor, suggests that the employer failed previously and repeatedly to take necessary steps to address the behavior. Memorandum Example
Does Human Resources (HR) bear any responsibility for this situation?
HR bears responsibility in this situation. A search of HR websites indicates that professional associations and HR professionals envision, or even require, a significant role for HR in preventing harassment. Some stress HR’s role in creating an appreciation for diversity – “The human resources function helps to ensure awareness of the qualities, experiences, work styles and personal attributes such as gender, age, race, religion, disability, and ethnicity that make individuals unique.” (HR Policy Association, n.d.)
Others speak to the role of HR in creating strategies that prevent harassment and discrimination – “An effective employee relations strategy contains specific steps for ensuring the overall well-being of employees. It also ensures that employees have a safe working environment, free from discrimination and harassment.” (Mayhew & Media, n.d.) Memorandum Example
Finally, HR has a role in education, training, and adherence – “Educate in your employee handbook with your clear policy against harassment. Review and make sure your policy against harassment is incorporated into your orientation and on- boarding process. Put your supervisors through the appropriate harassment prevention training. Make sure that leaders walk-the-talk.” (Payscale, 2011) Memorandum Example
Offices are typically diverse. And this diversity – the differences among people – can be the source of jokes or teasing. A joke here and there, especially if appreciated by both the teller and the recipient, is usually not a problem. But when that teasing becomes unappreciated and/or relentless, then the company has a problem. Even if everyone is in on the joke, the company still has a problem because it does not exist in a vacuum. The rest of the world may not take kindly to the nature and tone of the teasing within that company.
In the depicted case, the company has a big problem because the supervisor is in on the “fun.” The HR department, and by proxy, the employer, has not assured itself that its leaders “walk-the-talk.” When supervisors are in on the joke, employees are less likely to raise concerns about harassment and discrimination because they assume that the employer and its senior managers know of and possibly even support the behavior. In case depicted, the only individuals who know what happened are the four in the room. And from how all responded to the situation, it seems unlikely that any will share what happened with the employer or its senior managers. Memorandum Example
Companies must take harassment and discrimination seriously, not just to avoid lawsuits, but for the benefits that an environment free of harassment and discrimination brings to the company. Diversity brings new ideas and fresh perspectives to tackle tough problems, and opens new markets that diverse staff members may better understanding. Preventing harassment and discrimination begins the day a new employee starts, when during the on-boarding process employees are told that such behaviors are not tolerated and they are given the tools to report any concerns they might have. Memorandum Example
HR must periodically train supervisors and managers, not because of an assumption that supervisors and managers will slip up, but because of the importance of these issues. Regular reminders to supervisors and managers remind everyone in the company of these issues importance. Finally, supervisors must remind their staffs of the prohibitions against harassment and discrimination to reinforce that they are part of the effort to prevent these illegal activities.
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