• Choose Language:
  • print
  • decrease text sizeincrease text size
    text

Your Rights Racial Harassment

Outten & Golden LLP

This page provides answers to the following questions:

1. What is racial harassment?

2. Which federal law(s) cover racial harassment?

3. Who is covered by the law?

4. What types of conduct are considered racial harassment?

5. I think I'm being racially harassed at work. What should I do?

6. I am being harassed by someone of the same race. Is this racial harassment?

7. Can I be harassed even if I'm not a member of a minority group?

8. I work in a job where everyone uses foul language, including racial slurs, with each other. One of my coworkers is complaining that this is a "hostile environment." Could all of us be sued?

9. One of my coworkers occasionally tells a racially-based joke. I've asked him to stop but he just tells me to "loosen up a little." Is this racial harassment?

10. My supervisor keeps using a racial-based term to refer to me that he considers a compliment. I don't want to bring a lawsuit - I just want it to stop. What do I do?

11. My boss yells obscenities at everyone, regardless of their race. Some of the obscenities are very racially graphic. Is this racial harassment?

12. How can I complain to my company about my coworker's inappropriate conduct which I consider to be racial harassment?

13. How can I complain to my company about my supervisor's inappropriate conduct?

14. My company doesn't have a policy about what to do when harassment happens. Isn't that against the law?

15. The person to whom I am supposed to report harassment is the person who is harassing me! Obviously, reporting it to him isn't going to do any good. What do I do?

16. My supervisor tells racial jokes and uses racial slurs when speaking to some of my coworkers. It bothers me and I want him to stop. Can I do anything about it, or does coworkers of the race he's referring to have to complain?

17. After I was harassed, I complained to the company and it took care of the problem by transferring the harasser. Can I still file a lawsuit?

18. After I was harassed, I complained to the company and it didn't do anything. I'm still being harassed by my supervisor. What do I do now?

19. After I was harassed, I complained to the company, and it agreed to investigate. The company didn't talk to any of the witnesses I suggested, and now I've been told there is no evidence of harassment. What do I do now?

20. After I was harassed, I complained to the company. I asked that my complaint be kept confidential, because I didn't intend to pursue it any further. However, the company obviously disclosed my complaint to the harasser and several co-workers. What do I do now?

21. After I was harassed, I complained to the company. Even though the harassment stopped, I'm now known as a troublemaker, my coworkers won't talk to me, and I haven't been given the overtime hours I used to routinely receive. Is this legal?

22. After I was harassed, I complained to the company. The person harassing me stopped, but now I have to work with her everyday, and it makes me very uncomfortable. I have asked the company to transfer one of us, but it refuses. What do I do now?

23. I've been falsely accused of racial harassment by an employee I supervise, because she didn't get her raise this year due to poor performance. She claims it happened when no one else was around, so it's a "he said, she said" situation. Now other people in the company have heard the rumors and it's an uncomfortable situation, and I fear I might lose my job. What do I do?

24. After I was harassed, I found a new job that also pays me more money. Is there anything I can do, since I wasn't fired and didn't lose money as a result?

25. I was harassed by my coworkers. Is the company legally responsible?

26. I was harassed by my boss. Is the company legally responsible?

27. Who enforces the law?

28. What are the remedies available to me?

29. How can I file a complaint?

1. What is racial harassment?

You may have thought that sexual harassment is the one and only type of harassment that can happen in the workplace. However, racial harassment also can happen, and it can be against the law, using the same legal analysis applied to sexual harassment. Racial harassment is unwelcome behavior that happens to you because of your race, such as verbal or physical conduct of a racial nature. Conduct based upon color or national origin is analyzed under the law similar to race harassment, and also may violate the law.

Racial harassment in the workplace can be against the law when the conduct is sufficiently severe or pervasive that it creates an intimidating, hostile, or offensive work environment or interferes with the individual's work performance. This is also called hostile environment harassment.

There are a number of legal terms used in discussing racial harassment that may be unfamiliar to you. If you would like to learn more about these terms, read our definitions page.

2. Which federal law(s) cover racial harassment?

Although many federal and state laws do not specifically define race harassment or make it illegal, courts have found that racial harassment is a form of race discrimination which violates the laws against race discrimination in the workplace.

Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon race. This law makes it illegal for an employer to discriminate against individuals because of their race in hiring, firing, and other terms and conditions of employment, such as promotions, raises, and other job opportunities.

The laws of most states also make it illegal to discriminate on the basis of race, and some states specifically make racial harassment against the law. Some states may also have different grounds under which you can bring a harassment suit, such as assault and battery, or intentional infliction of emotional distress. For more information, see question 29 below.

3. Who is covered by the law?

Title VII covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

Many states also make it illegal to discriminate on the basis of race; some even require a fewer number of employees for harassment claims than are required for other types of discrimination claims. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

4. What types of conduct are considered racial harassment?

Many different kinds of conduct that are of a racial nature may be racial harassment, if the behavior is unwelcome and if it is severe or pervasive. However, courts have resisted adopting what they consider a workplace "code of conduct" or list of behavior that is automatically considered to be racial harassment. As a result, if the conduct is not unwelcome or not severe or pervasive, courts will not necessarily consider each type of conduct listed below to be racial harassment.

Some examples of conduct that may be racial harassment:

Verbal or written conduct:
Comments about clothing, personal behavior, or your body; racial or race-based jokes; telling rumors about your personal life; threatening you; organized hate activity directed at employees

Physical conduct:
Rape or assault; impeding or blocking your movement; inappropriate touching of your body or clothing;

Nonverbal conduct:
Derogatory gestures or facial expressions of a racial nature; following or stalking you

Visual displays:
Posters, drawings, pictures, screensavers or e-mails of a racial nature; epithets scrawled on the employer's property; hangman's nooses, Nazi swastikas, or other items understood to have racial significance

5. I think I'm being racially harassed at work. What should I do?

When dealing with racial harassment, there is no one best thing to do, because every situation is different. However, there are two important things to remember, as they affect your ability to pursue legal action should you decide to in the future.

Say no. One legal requirement for racial harassment is that the conduct be "unwelcome." While it is more likely that racial harassment will be considered unwelcome, for example, than sexual harassment, don't engage in stereotyping yourself which may lead someone else to think that certain comments are acceptable. Make sure the harasser knows that you consider his or her conduct to be unwelcome. Tell the person that his or her behavior offends you. Don't engage in racial banter or joke back in response, or otherwise send mixed signals. Direct communication, whether verbal or in writing, is better than ignoring the behavior and hoping it will go away.

Report harassment to your employer. It is very important that you report the harassment because your employer must know or have reason to know about the harassment in order to be legally responsible for a co-worker, client or customer's racially harassing conduct. Tell your supervisor, your human resources department or some other department or person within your company who has the power to stop the harassment. It is best to notify them in writing, and to keep a copy of any written complaint you make to your employer. Describe the problem and how you want it fixed. This creates a written record of when you complained and what happened in response to it. If there is a policy employees are supposed to follow when reporting harassment, you should follow the policy to the fullest extent possible. While you may not think complaining will do any good, your company may later claim it would have stopped the harassment if it had known about it, so reporting the conduct is very important to show that the company was aware of the harassment.

Other strategies you may also want to try at this point:

Write it down. As soon as you experience the harassment, start writing down exactly what happened. Be as specific as possible: write down dates, places, times, and possible witnesses to what happened. If possible, ask coworkers to also write down what they saw or heard, especially if the same thing is happening to them too. Others may read this written record at some point, so be as accurate and objective as possible. Do not keep the record at work, but at home or in some other safe place where you will have access to it in case something suddenly happens at work.

Keep your work records. A harasser may try to defend him or herself by attacking your job performance. Keep copies of any records of your work performance, including copies of your performance evaluations and any memoranda or letters documenting the quality of your work. If you do not have copies of relevant documents, try to gather them (by legitimate means only). In some states and/or according to company policy, you are allowed to review your personnel file, so you should review your file if that is allowed. You should either make copies of relevant documents or take detailed notes of what is in the file, if you are not allowed to copy the contents.

Talk to others. If you can do so safely, talk to other people at work about the harassment. You may find witnesses, allies, or others that have been harassed by the same person or who would be willing to help support you. Tell supportive friends, family members, and colleagues about the abuse. Telling others about the harassment not only can give you much needed support, but it can also be important evidence later.

For additional information about pursuing legal action, see question 29.

6. I am being harassed by someone of the same race. Is this racial harassment?

It can be. It is possible for blacks to racially harass other blacks, and whites to racially harass other whites. The key question the law asks is whether the conduct itself would have occurred if the victim had been of a different race: is the harasser harassing the person of the same race in a way that he or she would not harass someone or a different race? It can be demonstrated through the harasser's general hostility to one race, or evidence showing that the alleged harasser in fact targeted only one race.

7. Can I be harassed even if I'm not a member of a minority group?

Yes. Although the more common and familiar racial harassment scenario is a non-white employee targeted by a white employee, whites can be racially harassed by someone of any race. In workplaces where the majority race is non-white, persons who are non-white, or of a race different than the majority race, may still face racial harassment. If the harassment meets the severe and pervasive legal standard described above, then an employee can bring a legal claim, regardless of his or her race.

8. I work in a job where everyone uses foul language, including racial slurs, with each other. One of my coworkers is complaining that this is a "hostile environment." Could all of us be sued?

It is unlikely that all of you will be sued; however, you should still be concerned about the workplace environment of which you are a part. Courts have generally held that the federal anti-discrimination law, Title VII, does not permit individuals to be sued, and even when it is permitted (under the laws in some states), it is less common in practice to sue individuals than it is to sue the employer, which is generally more likely to have significant financial resources. In addition, whether this language causes a hostile environment depends on whether it can be considered severe or pervasive, so the answer would depend in part on how frequent and severe the use of graphic language is in your workplace.

However, if it has been brought to your attention that at least one coworker finds the environment offensive, then there may be others who feel the same way, but who have not yet complained. Also, even if the situation is not severe or pervasive enough to justify a racial harassment lawsuit, this does not prevent your employer from disciplining or terminating you and the others involved if it feels the conduct was inappropriate and/or violated company policy.

Some companies, in an effort to reduce and/or prevent lawsuits, have adopted a "zero tolerance" policy where racial harassment is concerned, which has led to employees being disciplined or terminated for conduct that was previously tolerated at work. So it is probably wise to curb the use of language in the workplace that has previously caused coworker complaints. Even if it does not get you in trouble this time, it may in the future.

9. One of my coworkers occasionally tells a racially-based joke. I've asked him to stop but he just tells me to "loosen up a little." Is this racial harassment?

The answer would likely depend on how explicit the jokes tend to be (some jokes are obviously more offensive than others, which would affect a determination of the conduct's severity), or how frequent the jokes are told (which would affect pervasiveness). Simple teasing, offhand comments, or isolated incidents that are not extremely serious are not against the law, even if the comments are unwanted and/or offend someone.

If you have told your coworker that you find it offensive, and the situation continues, you may wish to discuss it with a coworker, supervisor, or human resources manager to determine whether others are also offended by the jokes, or whether your company has a policy that would be violated by this behavior. Perhaps a solution can be reached that does not involve filing a formal complaint or lawsuit.

10. My supervisor keeps using a racial-based term to refer to me that he considers a compliment. I don't want to bring a lawsuit - I just want it to stop. What do I do?

Since one of the legal requirements for racial harassment is that the conduct be "unwelcome," make sure your supervisor knows that you consider his or her conduct to be unwelcome: that what he considers a compliment, you consider to be offensive. Tell the person that his or her behavior offends you. Don't engage in banter in response.

Direct communication, whether verbal or in writing, is better than ignoring the behavior and hoping it will go away, so if you do not feel comfortable talking to your supervisor in person, you may wish to prepare a letter to ensure that he or she knows exactly how you feel.

If that doesn't work, you may want to tell your supervisor, your human resources department or some other department or person within your organization who has the power to stop the harassment. This does not require you to file a lawsuit or hire an attorney, and may be sufficient to resolve the problem without further legal action. However, you should be aware that the time deadline to file a legal complaint starts running on the date of the harassment, not the date which your company resolves (or does not satisfactorily resolve) your complaint, so do not miss legal filing deadlines waiting on the company to resolve the situation. For more information about filing deadlines in your state, see question 29.

11. My boss yells obscenities at everyone, regardless of their race. Some of the obscenities are very racially graphic. Is this racial harassment?

The issue of the "equal opportunity harasser" has caused some difficulty for courts where the issue has been raised. Since the law requires the conduct at issue to occur "because of race," not merely that the conduct is racial in nature, it is more difficult to prove that the behavior occurred because of race when employees of multiple races are the victims of harassing conduct.

However, regardless of the company's potential legal liability, most employers do not want this kind of conduct occurring in the workplace, because of its effect on morale, productivity and in maintaining a professional atmosphere, so you should consider reporting the conduct according to the company's harassment policy. For more information, see question 14.

12. How can I complain to my company about my coworker's inappropriate conduct which I consider to be racial harassment?

If you have made it clear to your coworker that he or she is engaging in conduct that you consider unwelcome, and the conduct does not stop, the next step is to report this conduct to your employer. Going through internal complaint procedures may be difficult or uncomfortable, and may not be enough to stop the harassment, but if you unreasonably fail to use any preventive or corrective opportunities your employer provides, the company may be able to avoid legal liability for the harassment, depending on the circumstances.

The next step is for your employer to promptly investigate your claim. You should fully cooperate with any investigation, as your failure to do so could negatively affect any legal claim you may have. It is illegal for employers to retaliate against employees for bringing or participating in complaints, but it does happen, so be sure that you also keep track of and report any incidences of retaliation.

The investigator will need to know all the details of what you consider to be harassment, including information such as the names of any potential witnesses or other victims of the same harasser, specific descriptions of the offensive conduct, a chronology of when specific events happened and any reasons, if applicable, why you delayed reporting the harassment. Discussing this information with the investigator may be very embarrassing or difficult, but it is very important that you disclose all details of the harassment to the investigator. Otherwise, your integrity may be questioned later for failing to disclose relevant information, or the company could conclude that the problem is not severe or pervasive enough to warrant any corrective action.

You should also expect your employer to take remedial action if it determines that racial harassment or some other inappropriate behavior did occur, to deter the conduct from happening again. Disciplinary actions might include oral or written warnings, deferral of a raise or promotion, demotion or reassignment, suspension, or discharge. Your employer might also require counseling for the harasser. However, just because an employer disciplines the harasser, it does not necessarily mean that the conduct is severe enough to legally qualify as racial harassment. Also, if this is the first time that the company was made aware of the actions of your coworker, it may not be legally liable for a racial harassment claim if the actions the company took were successful in stopping the harassment and deterring future harassment.

13. How can I complain to my company about my supervisor's inappropriate conduct?

If you have made it clear to your supervisor that he or she is engaging in conduct that you consider unwelcome, and the conduct does not stop, you may now wish to report this conduct to your employer. The company may still be legally liable for harassment by its supervisors, even if the harassment is not reported but if you do not report the conduct, you run the risk that the supervisor will further escalate the harassment and/or harass other employees.

Once you report the harassment, the next step is for your employer to promptly investigate your claim. You should fully cooperate with any investigation, as your failure to do so could negatively affect any legal claim you may have. It is illegal for employers to retaliate against employees for bringing or participating in complaints, but it does happen, so be sure that you also keep track of and report any incidences of retaliation.

The investigator will need to know all the details of what you consider to be harassment, including information such as the names of any potential witnesses or other victims of the same harasser, specific descriptions of the offensive conduct, a chronology of when specific events happened and any reasons, if applicable, why you delayed reporting the harassment. Discussing this information with the investigator may be very embarrassing or difficult, but it is very important that you disclose all details of the harassment to the investigator. Otherwise, your integrity may be questioned later for failing to disclose relevant information, or the company could conclude that the problem is not severe or pervasive enough to warrant any corrective action.

You should also expect your employer to take remedial action if it determines that racial harassment or some other inappropriate behavior did occur, to deter the conduct from happening again. Disciplinary actions might include oral or written warnings, deferral of a raise or promotion, demotion or reassignment, suspension, or discharge. Your employer might also require counseling for the harasser. Even if this is the first time that the company was made aware of the actions of your supervisor, it also may be legally liable for a racial harassment claim if the conduct was severe enough to constitute a tangible employment action. However, just because an employer disciplines the harasser, it does not necessarily mean that the conduct is severe enough to legally qualify as racial harassment.

14. My company doesn't have a policy about what to do when harassment happens. Isn't that against the law?

While not specifically required by federal law, it generally is necessary for employers to establish, publicize, and enforce anti-harassment policies and complaint procedures, and may be required under law in some states. A company who fails to establish a harassment policy will have a great deal of difficulty proving that it exercised reasonable care to prevent and correct harassment, which is part of the employer's defense in harassment cases where there has not been a tangible employment action. As a result of the law's development in this area, most companies have wisely chosen to adopt anti-harassment policies and complaint procedures.

Your employer should provide every employee with a copy of the anti-harassment policy and complaint procedure, and redistribute it periodically. The policy and complaint procedure should be written in a way that will be understood by all employees in the employer's workforce. Other ways your employer can distribute the policy and complaint procedures include posting them in central locations and incorporating them into employee handbooks. If feasible, your employer should provide training to all employees to ensure that they understand their rights and responsibilities.

An anti-harassment policy and complaint procedure should contain, at a minimum, the following elements:

A clear explanation of prohibited conduct;

Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;

A clearly described complaint process that provides accessible avenues of complaint;

Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;

A complaint process that provides a prompt, thorough, and impartial investigation; and

Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Small businesses may be able to adopt less formal procedures. For example, if a business is sufficiently small that the owner maintains regular contact with all employees, the owner can tell the employees at staff meetings that harassment is prohibited, that employees should report such conduct promptly, and that a complaint can be brought "straight to the top." If the business conducts a prompt, thorough, and impartial investigation of any complaint that arises and undertakes swift and appropriate corrective action, it will have fulfilled its responsibility to "effectively prevent and correct harassment," even if a more formal policy is not in place.

If you have been harassed and your company does not have such a policy, you should consult with a lawyer immediately to get advice about how to proceed. This is a constantly developing area, and any actions you take could affect the outcome of your future lawsuit against the company, if one is brought.

If you have not been harassed, but want to know what happens when and if someone is harassed, or want your company to improve its employment practices, you may wish to suggest to your supervisor, your human resources department or some other department or person within your organization who has the power to create new employment policies that an anti-harassment policy be developed and distributed to all employees.

15. The person to whom I am supposed to report harassment is the person who is harassing me! Obviously, reporting it to him isn't going to do any good. What do I do?

If your employer's complaint procedure instructs employees to report harassment only to their immediate supervisors, it may be legally inadequate, because it doesn't adequately address situations where the supervisor is the one committing harassment or may not be impartial. Employers are generally advised to designate at least one official outside an employee's chain of command to take complaints, to ensure that the complaint will be handled impartially.

You should first find out whether someone other than your supervisor has been designated to accept complaints. If so, then you should report your harassment complaint to that person, and explain why you were unable to report your complaint to your supervisor. If not, you should register your complaint with someone who is higher than your supervisor in the chain of command, and also explain while doing so why you were unable to report your complaint to your supervisor. It is generally a good idea, and especially in this situation, to report your complaint in writing, so that the company has a written record of your complaint.

16. My supervisor tells racial jokes and uses racial slurs when speaking to some of my coworkers. It bothers me and I want him to stop. Can I do anything about it, or does coworkers of the race he's referring to have to complain?

Using racial epithets to describe a set of people can constitute racial harassment, even if the epithets are not directed at a particular individual. Even if the racially-tinged language is not directed at you, if you are required to listen to it in your work environment, it may be considered hostile work environment harassment, and you could take all of the steps available to those who have harassing words directed specifically at them. However, if it were a purely private matter-your supervisor jokes with coworkers outside of work or when no other employees are around, and no other employees are being forced to listen to the racially-tinged language, then generally only your offended coworkers would have grounds to complain or pursue a harassment claim.

17. After I was harassed, I complained to the company and it took care of the problem by transferring the harasser. Can I still file a lawsuit?

It depends. A company that was previously unaware of a harasser's conduct, and that took immediate and effective action once the harassing conduct was brought to the company's attention, is likely to successfully defend a lawsuit brought by a complaining employee where there has not been a tangible employment action. However, if the transfer was not effective to stop the harassment (the harasser harasses people in his or her new department or location), then the company may not be able to use the action it took (the transfer) as a defense, because the response has to be effectively designed to stop the harassment.

18. After I was harassed, I complained to the company and it didn't do anything. I'm still being harassed by my supervisor. What do I do now?

Was the complaint investigated or not?

If the prior complaint was not investigated at all, return to the person or department to whom you previously complained and find out why your complaint was not investigated. Be sure to provide information about the new harassment that was not part of the previous complaint. Make it clear that you expect the company to investigate your complaint.

If the prior complaint was investigated, but nothing was done to the harasser, find out why. Was it because an investigation did not turn up sufficient proof? If so, find out (either from the company or other witnesses to the harassment) whether other employees were interviewed, and what information (if any) the company is willing to disclose about what it learned in the investigation. Perhaps your witnesses were fearful for their jobs and did not back you up, or the company did not do a thorough investigation. Some companies take the position that disciplinary matters are confidential, and even though discipline was taken, the company will not tell you what happened. However, if you are still being harassed, you should make the point that the action taken was not effective to prevent the harassment from happening again, and that a stronger deterrent is necessary. You may also want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened.

19. After I was harassed, I complained to the company, and it agreed to investigate. The company didn't talk to any of the witnesses I suggested, and now I've been told there is no evidence of harassment. What do I do now?

Has the harassment stopped? If so, perhaps the threat of the investigation itself has been sufficient to deter your harasser from further harassing conduct. You still may be able to file a legal claim, based on what happened prior to the investigation, but it may be an uphill battle proving harassment, since the company's actions may not appear to be unreasonable.

However, if the harassment has not stopped, then you may be able to prove that the company's investigation was inadequate and not sufficient to deter future harassment. You may also want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened.

20. After I was harassed, I complained to the company. I asked that my complaint be kept confidential, because I didn't intend to pursue it any further. However, the company obviously disclosed my complaint to the harasser and several co-workers. What do I do now?

When you first complained of harassment, your employer should have made clear to you that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot be expected to guarantee complete confidentiality, since it may be impossible to conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about your allegation and any record of your complaint of harassment should have been shared only with those who need to know about it.

There can also sometimes be a conflict between your desire for confidentiality and your employer's legal duty to investigate, if you inform a supervisor about alleged harassment, but ask him or her to keep the matter confidential and take no action. If the supervisor does nothing, it could subject the employer to a future lawsuit. While it may seem reasonable to let you determine whether or not to pursue a complaint, the employer still has a duty to prevent and correct harassment.

One mechanism to help avoid such conflicts in the future would be for your employer to set up an informational phone line which employees can use to discuss questions or concerns about harassment on an anonymous basis. It may be too late for you, but it could prevent others from having a similar experience to yours.

If the harasser or other coworkers are treating you differently because you made a complaint, that can be a form of retaliation, which is also illegal. (See the next question for more information on this topic.) You may also want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened.

21. After I was harassed, I complained to the company. Even though the harassment stopped, I'm now known as a troublemaker, my coworkers won't talk to me, and I haven't been given the overtime hours I used to routinely receive. Is this legal?

Not only can racial harassment be against the law, but retaliating (taking revenge) against someone for complaining about racial harassment or for participating in an investigation of racial harassment can be against the law as well.

Some examples of retaliation include: you complain about racial harassment and are made to take an unpaid leave of absence, although the harasser continues to work; after you write a letter describing racial harassment that you witnessed, you are reassigned to a less desirable position in the same or different department, or the situation described above, if it can be shown that the lack of overtime assignments was related to your harassment rather than a business downturn or other business-related reason.

If your employer retaliates against you for complaining about racial harassment or for participating as a witness in an investigation of racial harassment, you may take any or all of the steps suggested here for those who have been harassed. It may be more difficult to address your coworkers' treatment, unless you can show that your employer through its managers or supervisors have encouraged them to give you the silent treatment. If so, this may be additional evidence of retaliation. If not, you may want to enlist the assistance of a sympathetic coworker or supervisor to see if the situation can be improved.

22. After I was harassed, I complained to the company. The person harassing me stopped, but now I have to work with her everyday, and it makes me very uncomfortable. I have asked the company to transfer one of us, but it refuses. What do I do now?

An employer in this situation may be faced with two competing principles:

One principle is that disciplinary measures should be proportional to the seriousness of the offense. If the harassment was minor, such as a small number of "off-color" remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary. On the other hand, if the harassment was severe or pervasive, then suspension or discharge may be appropriate.

A second principle that the employer must keep in mind is that remedial measures should not adversely affect the person who complains of harassment. For example, if it is necessary to separate the parties, then the harasser should be transferred (unless the complainant prefers otherwise). Remedial responses that penalize the complainant could constitute unlawful retaliation and are not effective in correcting the harassment.

Companies have a number of options when dealing with an employee who either admits the harassment or is found by the company to have engaged in harassment, based on the evidence. The following is a list of actions open to the company that have been recognized as appropriate responses to harassment:

Examples of measures to stop the harassment and ensure that it does not recur:

oral or written warning or reprimand;

transfer or reassignment;

demotion;

reduction of wages;

suspension;

discharge;

training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer's anti-harassment policy; and

monitoring of harasser to ensure that harassment stops.

Examples of measures to correct the effects of the harassment:

restoration of leave taken because of the harassment;

expungement of negative evaluation(s) in employee's personnel file that arose from the harassment;

reinstatement;

apology by the harasser;

monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the work place because of the complaint; and

correction of any other harm caused by the harassment (e.g., compensation for losses).

Your company, based upon its perception of the seriousness of the offense, may have chosen to take measures other than transfer or reassignment of the harasser to stop the harassment. Given that the harassment has stopped, it may not be legally obligated to transfer the harasser if lesser measures were sufficient, and the only remaining problem is merely your discomfort. The company may also fear that accepting your offer to be transferred will invite a future retaliation claim and/or there may not be other appropriate jobs available at this time. You may want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened, or whether there are any other ways you may be able to obtain a transfer.

23. I've been falsely accused of racial harassment by an employee I supervise, because she didn't get her raise this year due to poor performance. She claims it happened when no one else was around, so it's a "he said, she said" situation. Now other people in the company have heard the rumors and it's an uncomfortable situation, and I fear I might lose my job. What do I do?

First, here's what you have the right to expect from your company when it investigates the complaint.

An employer should conduct a prompt, thorough, and impartial investigation. As soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary. If a fact-finding investigation is necessary, it should be launched immediately. The amount of time that it will take to complete the investigation will depend on the particular circumstances. If, for example, multiple individuals were allegedly harassed, then it will take longer to interview the parties and witnesses.

The investigator should interview the employee who complained of harassment, the alleged harasser, and others who could reasonably be expected to have relevant information.

Before completing the investigation, the employer should take steps to make sure that harassment does not continue. If the parties have to be separated, then the separation should not burden the employee who has complained of harassment. An involuntary transfer of the complainant could constitute unlawful retaliation. Other examples of interim measures are making scheduling changes to avoid contact between the parties or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.

You may feel that these guidelines favor the person complaining of harassment; however, you should understand that the company could face a serious lawsuit from the person who complains if it does not investigate the complaints promptly and thoroughly. Therefore, many companies take initial complaints very seriously, even if they are later proven to be either untrue or incapable of being substantiated, so you should view a thorough investigation as an opportunity to prove your innocence, rather than as a presumption that you are guilty.

For the protection of both the complainant and the person accused of harassment, information about the allegations and any records of the complaint of harassment against you should have been shared only with those who need to know about it. You should seek assurances from your employer that it will keep information about the complaint confidential, and will ask all participants in the investigation process to do so as well.

You should also be aware that some companies, in an effort to reduce and/or prevent lawsuits, have adopted a "zero tolerance" policy where all harassment is concerned, which has led to employees being disciplined or terminated for conduct that was previously tolerated at work. So it is probably wise to realistically assess your conduct to determine whether the complaint may have any merit at all, even if some allegations are either untrue or cannot be proven. Even if your conduct does not get you in trouble this time, it may in the future.

You may also want to consult with an attorney at this point to discuss your participation in the investigation, and to determine whether you have any legal remedies in the event that the company does take any action against you for harassment.

24. After I was harassed, I found a new job that also pays me more money. Is there anything I can do, since I wasn't fired and didn't lose money as a result?

Legally speaking, a company that is otherwise liable for harassment is liable whether or not you suffered any wage loss, or even any psychological harm.

Practically speaking, if you have not suffered any wage loss or significant emotional harm, it may be difficult to find an attorney to take your case, since it may be difficult for you to be awarded the type of money damages that make certain cases economically feasible to pursue. Before determining whether to take legal action or file a complaint, you should consult with one or more attorneys to determine whether your case is the type of case that a lawyer will be willing to pursue on your behalf.

25. I was harassed by my coworkers. Is the company legally responsible?

It depends. When harassment by coworkers or even a supervisor creates an unlawful hostile environment but does not result in a tangible employment action (hiring, firing, denial of a promotion, or other tangible actions), the employer can avoid legal liability (called an "affirmative defense") if both of the following elements are present:

the employer exercised reasonable care to prevent and correct promptly any harassment; and

the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Both elements of the affirmative defense must be present: for example, if unlawful harassment by a supervisor occurred and the employer failed to exercise reasonable care to prevent it, the employer will be liable even if the employee unreasonably failed to complain to management or even if the employer took prompt and appropriate corrective action when it gained notice.

Before determining whether to take legal action or file a complaint, you should consult with one or more attorneys to determine whether your employer is likely to be able to successfully use the affirmative defense to your harassment claim.

26. I was harassed by my boss. Is the company legally responsible?

An employer is always legally responsible for harassment by a supervisor that culminates in a tangible employment action. The company cannot avoid legal liability on the basis that you did not complain about the harassment, or because it took other steps designed to discourage workplace harassment. The Supreme Court recognized that this result is appropriate because an employer acts through its supervisors, and a supervisor's undertaking of a tangible employment action is equivalent to an act of the employer.

If you have been harassed by a supervisor, you should consult with an attorney to determine whether you have been subjected to a tangible employment action. If you have been, then you would be entitled to pursue a lawsuit to recover for the harm you have suffered, including lost wages and psychological harm. (See "question 28 for further information about legal remedies).

27. Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination related to race discrimination in workplaces of 15 or more employees. Most states have their own agencies that enforce state laws against discrimination.

28. What are the remedies available to me?

Victims of racial harassment can recover remedies to include:

back pay;

hiring;

promotion;

reinstatement;

front pay;

compensatory damages (emotional pain and suffering);

punitive damages (damages to punish the employer);

other actions that will make an individual "whole" (in the condition s/he would have been but for the discrimination).

Remedies also may include payment of:

attorneys' fees;

expert witness fees; and

court costs.

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.

Your state law may allow for greater or different remedies than federal law.

29. How can I file a complaint?

For more information on filing a complaint for racial harassment, select your state from the map or list below.

united states map Washington Oregon Idaho Montana North Dakota Nevada Utah Arizona California New Mexico Colorado Wyoming South Dakota Nebraska Kansas Texas Oklahoma Louisiana Mississippi Arkansas Alabama Tennessee Missouri Iowa Minnesota Wisconsin Michigan Illinois Indiana Florida Georgia South Carolina North Carolina Virginia Kentucky Ohio West Virginia Pennsylvania New York Vermont Massachusetts Rhode Island Connecticut New Jersey Delaware Maryland Maine New Hampshire District of Columbia Alaska Hawaii Puerto Rico
 

This page was updated on October 25, 2006



Follow us on: