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“Zero Tolerance” Policies: No Exemptions

Thursday, November 1st, 2012

Increasingly, government agencies, organizations, and companies are instituting “zero tolerance” policies of one sort or another in the workplace. In some instances, the policies stem from multiple discrimination complaints, federal or state investigations, lawsuits, or constant grievances. Sexual harassment and overt prejudices in the workplace affect not only those who are directly involved, but others around them. It is logical that, if racial or ethnic slurs, or occurrences of sexual harassment, are rampant among employees, then workplace productivity suffers—more time is spent diffusing workplace tensions than working.

Hence, the advent of “zero tolerance” policies in the workplace.

“Zero tolerance” policies are effective only when enforced across the board; from the upper echelons of management to the myriad of support staff that keep the organization running on a day-to-day basis. An Eleventh Circuit Court of Appeals decision in Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011) illustrates this point.

At issue in this case was the “zero tolerance” policy banning discriminatory behavior in the workplace, including e-mail transmission of racial slurs. The genesis of Lockheed-Martin’s “zero tolerance” policy was a deadly shooting that occurred at one of its plants in 2003 by a self-declared “white supremacist” employee. This employee killed five people and wounded several others in a rampage that ended with the employee’s suicide.

Ultimately, the EEOC concluded that Lockheed-Martin was responsible for the incident because its Human Resources Department knew of racial hostility at the plant, but did nothing to address it. Negative press coverage of the incident followed and a “zero tolerance” policy was instituted.

Under the policy, employees of Lockheed-Martin were required to report violations to supervisors who, in turn, would report violations to the Human Resources Department. An investigation would ensue and, if a person was found in violation of the “zero tolerance” policy, punishment would follow, which may include termination.

Under the facts of Smith, a white supervisor at one of Lockheed-Martin’s plants (Mitten) sent a racial joke, “Top Ten Reasons Why There Are No Black NASCAR Drivers”, via e-mail to his supervisor. The court observed that the e-mail “featured a top-ten list of derogatory stereotypes, all of which portrayed black people as criminals, pimps, and gang members.” A non-supervisory employee brought the e-mail communication to the attention of the Human Resources Department, which conducted an investigation. The white supervisor who transmitted the e-mail to his supervisor was found in violation of the “zero tolerance” policy and was terminated from his employment.

In addition, other white employees who had received and/or transmitted the e-mail were terminated. However, one African-American employee who received the e-mail, was reprimanded.

Later in the year, another e-mail was circulated. This time, the e-mail contained slurs of white employees and was titled, “How to Dance Like a White Guy.” As noted by the court:

Mitten later learned that, within two months of his termination, HR discovered that two black non-supervisors at the Marietta plant had also violated the zero tolerance policy by transmitting racist emails targeting whites. These black employees, however, merely received temporary suspensions as discipline for their conduct.

After learning of this more-lenient treatment for black employees, Mitten concluded that he had been fired—in lieu of a temporary suspension—because he is white.

The Eleventh Circuit found this problematic. Initially, it cited to the McDonnell Douglas framework established by the United States Supreme Court to determine whether Mitten had made “out a case sufficient to withstand a motion for summary judgment”, also known as a “prima facie” case of discrimination. The court concluded that, in this case, the prima facie case was made:

When, as here, the plaintiff claims that his employer discharged him on account of his race, he must establish four elements: (1) that he is a member of a protected class (here, Caucasian); (2) that he was qualified for the position he held; (3) that he was discharged from that position; and (4) that in terminating his employment, his employer treated him less favorably than a similarly situated individual outside of his protected class (here, an African-American). E.g., 16 Maynard v. Bd. Of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824). If the plaintiff makes this showing, he raises a presumption that his race motivated his employer to treat him unfavorably. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981).

Lockheed-Martin asserted that, because Mitten held a supervisory position with the company, he was held to a higher standard in enforcement of the “zero tolerance” policy on racial slurs. Under the circumstances of the case, the court observed:

Lockheed asserts that Mitten was fired because he was employed as a supervisor, not because he is white; however, record evidence permits a jury to infer reasonably that this justification merely is a pretext for a discriminatory motive. See, e.g., Silverman, 637 F.3d at 734 (stating that circumstantial evidence that the employer’s offered justification for an adverse employment action is pretextual could permit a reasonable jury to infer the employer’s discriminatory intent). The evidence shows that Tom Heiserman (vice president of Human Resources), in the summer of 2005, discriminatorily fired white employees employed in non-supervisory positions who, like Mitten, distributed racially insensitive emails. Although these other fired white employees were not supervisors, a jury reasonably could conclude that Heiserman, having discriminatorily fired white employees for similar conduct around the time of Mitten’s discharge, also discriminated against Mitten. See Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008) (finding evidence of other acts Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008) (finding evidence of other acts of discrimination by the same decisionmaker against other employees in the plaintiff’s protected group to be admissible under Fed. R. Evid. 404(b) because that evidence is probative of the decisionmaker’s discriminatory intent).

In the end, the court concluded that it was improper for the Human Resources Department to consider a perpetrator’s race in doling out disciplinary actions. The court stated:

The foregoing circumstantial facts preclude summary judgment (in favor of Lockheed-Martin) in this case as a jury reasonably could infer that Lockheed only fired Mitten because he is white. The evidence yields this inference because it: (1) suggests that Lockheed’s justification for firing Mitten is a pretext for racial animus; (2) shows that Lockheed had a substantial incentive to discipline white employees more harshly than black employees . . .; and (3) indicates clearly that Lockheed consciously injected race considerations into its discipline decision making without an adequate explanation for doing so.

The court noted that lesser disciplinary actions levied on African-American employees as compared to their white counterparts for similar conduct under the “zero tolerance” policy indicated racial motivation in the decision-making.

For a copy of this opinion, go to www.ca11.uscourts.gov.

About the author.

Seena Foster, award winning author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.

Formula for Success: Handling Harassment in the Workplace

Thursday, November 1st, 2012

In Harris v. PetSmart, Inc., ___ F.Supp.3d ___, Case No. 11-00094 (E.D. Ky. Oct. 23, 2012), the district court held that an employer was not liable for same-sex harassment under Title VII of the Civil Rights Act of 1964, regardless of whether the alleged harasser was a co-worker or supervisor, because:

√ The company developed and widely published a strict anti-harassment policy along with procedures for responding to complaints of harassment. The policies and procedures were part of the “Employee Handbook.”
√ The anti-harassment procedures allowed for “multiple, alternative avenues” for an employee to complain about harassing conduct, and these avenues included filing a complaint with supervisors, district and regional managers, or a Vice President. The employer also provided an anonymous, toll-free hotline for purposes of filing a complaint.
√ Plaintiff used the toll-free hotline to report harassment, and the employer responded by immediately initiating an investigation of the matter.
√ Upon completion of the investigation, the employer found that the allegations of harassment were supported.
√ Consistent with its anti-harassment policies and procedures, the employer fired the alleged harasser.

So, having clear, published anti-harassment policies and procedures in place, and following those policies and procedures in a prompt manner when a complaint is made, will enable an employer to successfully minimize the occurrence of, and resolve, complaints of harassment and hostile environment.

About the author.

Seena Foster, award winning author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.