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LEGAL SMARTS: Effectively Manage Racially Biased Conduct in the Workplace – Or Risk Losing Your Job

By Dionysia Johnson Massie

There are times when managers overhear employees making racially derogatory comments in the workplace and do not quite know how to respond to them. Should I say something? Should I ignore it? What should I do? Recently, a Georgia court made it clear that employers can lawfully terminate managers for failing to discipline employees making racially biased comments in the workplace.

In Crumpler, an assistant manager was present when another employee used a racial epithet in the workplace and also expressed an intention to assist one ethnic group obtain their sales numbers presumably to the exclusion of other ethnic groups. Another employee informed the assistant manager, the employee making the offensive comments and another employee that she was offended by the comments. As the complaining party walked away from the group, she allegedly overheard the assistant manager state to the rest of the group, “I hate that b****.” The assistant manager did not discipline the employee making derogatory comments and did not otherwise effectively address the employee’s concerns.

After complaining to Human Resources about this incident, Human Resources performed an extensive investigation. During the investigation, the Company discovered several other instances where the assistant manager violated its code of conduct policies and confirmed that she had permitted a racial epithet to occur in her presence without taking appropriate disciplinary action. The Company terminated the assistant manager’s employment.

The assistant manager filed a lawsuit claiming race and sex discrimination. Her principle argument was that men and/or non-African American employees also violated the code of conduct but were permitted to retain their employment. The evidence, however, did not  support her claims. The Court held there were no other employees committing the same type of violation so the assistant manager could not identify a proper comparator who was treated differently. Further, the evidence also showed men and non-African Americans also were terminated for code of conduct violations and that women and African Americans violating the code of conduct retained their jobs. For these reasons, the Assistant Manager could not demonstrate that her termination was the result of race or gender discrimination.

This case identifies important lessons for employers, managers and employees:

(1) Managers should receive training that both explains their obligation to manage the workplace in a manner that discourages racially biased comments and behaviors and also arms them with tools to effectively address those behaviors when they arise. They also must understand that responding negatively to employee complaints is prohibited.

(2) Companies should have policies outlining behaviors that are expected in the workplace – and those that are prohibited. These policies help guide employees and managers’ workplace behavior.

(3) Companies should apply their policies consistently. In this instance, the Company’s evidence demonstrated that it applied its code of conduct to support termination decisions impacting people of both genders and other ethnicities. This evidence helped to demonstrate that the Company did not terminate the assistant manager because of her race or gender.

(4) Employees and Managers should refrain from engaging in discriminatory behavior, including making racially biased comments or using derogatory terms or epithets. Failure to avoid these behaviors could result in an employer terminating your employment. AT

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