A number of posts have previously dealt with the subject of racial harassment–in the context of the golf world, in the context of the politics, and in the context of a recent report from the Equal Employment Opportunity Commission on the rather dramatic increase in charges of racial harassment in the workplace during ‘07.  As human resources professionals and employment lawyers, we need to be particularly alert to this subject in the next several months.  Why?  The presidential campaign.

Right now, it appears that Barak Obama will still be in the running when the Democratic Convention occurs.  It’s possible that he’ll be the presumptive nominee before the convention, depending on what happens in four primaries next week, particularly those in Ohio and Texas.  Race has already come up here and there in the campaign, and the longer Obama is a candidate, the more it will come up.  If he’s the nominee of the Democratic Party, race will be ratcheted up big time as an issue, and it will make itself known in a variety of places, including the workplace.  I think it’s prudent, therefore, for you to make sure that it doesn’t come up in a way that puts your employer at risk for allegations of racial harassment.

Racial harassment is unlawful.  You have an obligation to keep it from occurring.  Your executives have that obligation.  Your supervisors and managers have that obligation.  Your employees have that obligation.

Let’s look at a couple of real cases to make sure we’re all on the same page about what racial harassment looks like. 

Williams v. Conagra Poultry Company–Filed in federal court in Arkansas and ultimately decided by the Eighth Circuit Court of Appeals (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), an African-American employee alleged the following:  racist jokes and remarks by fellow employees and managers; racist graffiti in the men’s room; nooses left at work stations; a black doll hung by a noose in the factory; invitations to attend Ku Klux Klan hunting parties where African-Americans would be hunted; a supervisor who threatened to fire the employee’s “black ass”; and being disciplined for things white employees weren’t disciplined for.  A jury awarded the employee over $170,000 in compensatory damages for being wrongfully terminated, $500,000 in punitive damages for being wrongfully terminated, $600,000 in compensatory damages for being racially harassed, and over $6 million in punitive damages for being racially harassed.  The Eighth Circuit Court of Appeals upheld all of this, except for the punitive damages award for racial harassment.  Finding that the $6 million award was excessive, the court reduced it to $600,000–making the employee’s total monetary award close to $2 million. 

Equal Employment Opportunity Commission v. Northwest Airlines–Filed in federal court in Michigan and ultimately decided by the Sixth Circuit Court of Appeals (which covers Kentucky, Michigan, Ohio and Tennessee), the EEOC alleged the following on behalf several African-American employees: a comment by a manager saying “three kudos” and another manager saying “making it KKK”; a sign hanging in the warehouse soliciting members for the Michigan Militia which said “no tree-huggin’ ___________” with the N-word crossed out; a noose hanging in the lunch room; a metal object resembling the Black Sambo characters in a work area; a cartoon of Christopher Robin and Winnie the Pooh taped to the door of a central work area when an African-American employee returned to work after a leave of absence caused by the death of her son, with the caption reading, “So you see Pooh, life just basically sucks, then you die.  Deal with it”; a drawing of what a black man sees after he’s thrown into a well by the KKK; graffiti on the wall of a restroom calling the Million Man March the “Million Monkey March” and saying that “crime was low because all the [N-word] are in Washington”; a white employee with a KKK symbol on his locker who sometimes walked around with a noose in his hand; and an African-American employee being shown a picture of gorillas in a tree and being asked if it was his family tree.  The lower court dismissed the case without a trial.  The Sixth Circuit Court of Appeals ruled there was plenty of evidence that could constitute racial harassment and returned the case to the lower court for a full trial.

There are other cases of alleged racial harassment won by employers, even though some of the allegations were egregious, when the employers were able to show they acted quickly to remedy the situation or the employees failed to give the employer notice so that appropriate remedial action could be taken: Robinson v. Valmont Industries (case filed in Nebraska and ultimately decided by the Eighth Circuit Court of Appeals) and Lowe v. Consolidated Freightways (case filed in Wisconsin and ultimately decided by Seventh Circuit Court of Appeals, which covers Illinois, Indiana and Wisconsin).

If some of the things noted above happen when an African-American isn’t running for President, there’s a much greater chance that those things and worse will happen if an African-American is running for President.  We may not want to admit that, but it’s the truth, in my opinion.

So, increased vigilance is called for.  And what that means for your company or organization depends on your judgment.  Maybe a strong speech or communication from the CEO is in order.  Maybe meetings with your supervisors and managers are in order.  Maybe more diversity training is in order.  Or maybe nothing is required.  Sometimes, employers are worried that if you make too big a deal out of something like this, it could make matters worse.  If you’re worried about that, I’d say that’s a good indicator that matters are going to get worse, and you need to do something before that happens.

Most people say this election is the most exciting in recent history.  Let’s keep the excitement focused on the positive.  Let’s certainly be vigilant to make sure that the excitement doesn’t turn into something unlawful.