Protection Against Retaliation

If you file an internal complaint at your company alleging that you are the victim of harassment or retaliation, your employer is supposed to inform staff that it will not accept you being subjected to any mistreatment, while your complaint is being investigated.

In addition, any employment decisions that are made, after you file a complaint, should be reviewed by your employer in order to ensure that the decisions are not a disguise for continued punishment. For instance, if you complain about harassment from your supervisor and your supervisor transfers you to an office that is isolated (a long and out-of-the-way commute, etc.), your employer should analyze the transfer and should reverse the supervisor’s decision, if it is determined that you were transferred based on your supervisor’s need for revenge.

The EEOC specifically says:

An employer should make clear that it will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. An anti-harassment policy and complaint procedure will not be effective without such an assurance.

Management should undertake whatever measures are necessary to ensure that retaliation does not occur. For example, when management investigates a complaint of harassment, the official who interview s the parties and witnesses should remind these individuals about the prohibition against retaliation. Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives.

Glass Ceilings

I think many Black workers have felt, at some point, that there was nothing we could do to break into the next grade level, salary level or job category at our jobs. We’ve found that our education may be deemed insufficient for a promotion, even if we have years of hands on experience and are experts in our jobs. We may have been told that we need additional training, but were denied training opportunities at work (or we may be told we can go to job-related training, but we have to foot the costs ourselves because there’s no money in the company budget). We may have been told we need to be in our current job for a few more years to show that we’ve grasped everything we could, even as we may watch a White worker with less experience and less time on the job get that very same promotion.

Far too often, promotions provide employers with the greatest opportunity to engage in disparate/unequal treatment of employees. Black workers may need x, y, and z, while White workers may not need any of those requirements in order to be promoted. White workers can ask for and get approved for training, while a Black worker may be told training is premature or not job-related.

According to courts, denying someone the building blocks for a promotion is just as bad as denying them the promotion itself. And, denying someone the opportunity to advance based on racial biases and stereotypes is just plain illegal.

At my previous job, Blacks couldn't get to a level 5 job classification--out of 7 possible levels. It was nearly impossible to reach a level 4 classification because that was the unwritten high-point for Black staff. As a result, level 3 employees (Black) that were due for a promotion would conveniently begin to hear about "performance deficiencies."

Some employers have unwritten, yet specific standards/requirements FOR BLACK EMPLOYEES that are unattainable or nearly unattainable. Employers may creates hurdle for Blacks workers that can impede their progress in moving up within the company.

My former employer used manufactured performance deficiencies as justification for denying promotions. But, another way to achieve the goal of not allowing Blacks to work at higher levels was to intentionally marginalize the work and contributions of Black staff and junior level managers in order to state—unequivocally—that they were unqualified for more challenging work, supervisory roles or other top level assignments/roles.

If most, if not all, of the Black workers at your job are in entry level or junior level jobs (with a few Blacks in the mid-level job categories), your employer may be engaging in discriminatory practices. You should take a serious look at the demographics at your company by examining the jobs and levels/classifications of Black staff.

Ask around. If other Blacks feel that minorities are being denied job opportunities, etc. simply because of race, start tracking unequal conditions, promotion requirements, etc. and speak to your Human Resources staff. Doing this as a group would be best because there is power in numbers.

Below is a post regarding an EEOC race discrimination settlement concerning the failure to promote Blacks to managerial positions. The settlement was reached yesterday.

LEGAL BRIEF: Co-Worker Rapped Racial Slurs Despite Complaints—Black Worker Awarded $168,000 Settlement

The Legal Brief gives everyone an idea of some of the types of cases that EEOC litigates, as well as an idea about the specific race-based issues that other Blacks have faced and challenged in the workplace. You will also get insight into the arguments presented by EEOC and the defenses offered by employers. This information may be helpful to other workers, who may be considering filing a complaint or seeking legal counsel. In this case, a Black worker was subjected to listening to rap music with offensive language and racial epithets. He was also forced to listen to a coworker rapping along to the music and using racial slang within earshot.


SAN JOSE – A major Silicon Valley manufacturer of semiconductor production equipment will pay $168,000 to settle a racial harassment and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC had charged Novellus Systems, Inc. with subjecting an African American worker to racial harassment.

According to the EEOC’s suit, Michael Cooke had to listen on a regular basis to a 27-year-old Vietnamese American co-worker playing and rapping aloud to music lyrics that included anti-black racial epithets such as the “N-word.”

Although Cooke complained several times to his supervisors and made it clear that the language was offensive to him, the co-worker continued to use slang involving racial slurs and to sing along to these kinds of lyrics within Cooke’s earshot.

The EEOC’s lawsuit charged that delaying effective corrective action by more than half a year constitutes unlawful harassment, and that Cooke was fired in retaliation for his earlier complaints.

The two-year consent decree (Case No. C-07-4787-JW) signed by U.S. District Court Judge James Ware includes monetary damages of $168,000 as well as specific injunctive relief. While Novellus denied liability and admitted no wrongdoing, it agreed to incorporate a “Statement of Zero-Tolerance Policy and Equality Objectives” in its Equal Employment Opportunity and Harassment Policy. Additionally, Novellus agreed to amend its harassment policy to refer specifically to harassment through the playing of music, and to include offensive musical lyrics in its examples of racial harassment.

“The EEOC is not in the business of judging anyone’s musical tastes, but we are concerned when we find that an employer failed to respond promptly after being put on notice of racially offensive language or conduct in the workplace,” said EEOC Regional Attorney William R. Tamayo. “We commend the company for resolving this action and for agreeing to modify its anti-discrimination policies to include a specific prohibition of the playing of music lyrics that contain racially derogatory terms.”

Acting EEOC District Director Michael Baldonado commented, “This is the kind of situation that many Bay Area workplaces, as well as the rest of the country face: How do you manage the culture clash – across generations, race and ethnicity, you name it – in a workplace that gets more diverse every day? I think it’s critical to try to put yourself into the shoes of the other person and take all complaints of discrimination seriously. Together we can try to defuse tensions and prevent situations from developing into discrimination and harassment.”

Baldonado added that the EEOC welcomes employers and advocates to take part in its E-RACE Initiative (Eradicating Racism and Colorism from Employment). Launched early last year by EEOC Chair Naomi C. Earp, E-RACE, a national outreach, education, and enforcement campaign focuses on new and emerging race and color issues in the 21st century workplace. Further information about the E-RACE Initiative is available on the EEOC’s website at http://www.eeoc.gov/initiatives/e-race/index.html.

According to its website, San Jose, Calif.- headquartered Novellus (NASDAQ: NVLS) maintains engineering facilities in San Jose and Tualatin, Ore., with sales and service operations in 16 countries around the world. Novellus has approximately 3,300 employees worldwide and annual revenues of $1.6 billion.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The San Francisco District’s jurisdiction includes Northern California, Northern Nevada, Alaska, Idaho, Montana, Oregon, and Washington. Further information about the EEOC is available on its web site at http://www.eeoc.gov.

http://www.eeoc.gov/press/6-24-08.html

LEGAL BRIEF: BCI Coca-Cola Settles with African American Worker for $250,000

The Legal Brief gives everyone an idea of some of the types of cases that EEOC litigates, as well as an idea about the specific race-based issues that other Blacks have faced in the workplace. You will also get an insight into the arguments presented by EEOC and the defenses offered by employers. This information may be helpful to other workers, who may consider filing a complaint or seeking legal counsel.

EEOC Settlement Follows Victory in 10th Circuit Court of Appeals Establishing ‘Subordinate Bias’ Theory

ALBUQUERQUE, N.M. – In May 2008, the U.S. Equal Employment Opportunity Commission (EEOC) announced the settlement of a race discrimination lawsuit against BCI Coca-Cola Bottling Company of Los Angeles (BCI) for $250,000 on behalf of an African American former worker in Albuquerque, N.M. The resolution follows a favorable ruling by the U.S. Court of Appeals for the 10th Circuit, which established an important legal doctrine known as “subordinate bias” theory.

The EEOC had charged BCI with committing race discrimination against Stephen B. Peters, a black merchandiser, when a supervisor fired him in 2001 for not working his scheduled day off, even though Peters had called in sick and provided medical documentation. Additionally, the EEOC found that the supervisor made racist remarks about blacks generally.

“This case should remind employers that the EEOC will vigorously pursue and eradicate race discrimination using all the enforcement tools at our disposal,” said District Director Chester Bailey. “While we always seek early resolutions out of court with employers as a first resort, we will not hesitate to litigate when necessary and appropriate.”

The litigation (Civil Action No. 02-1644) was filed by the EEOC in U.S. District Court for the District of New Mexico against BCI, doing business as Phoenix Coca-Cola Bottling Company and Coca-Cola Bottling Company of Albuquerque. The court had previously dismissed the case on a summary judgment ruling which was subsequently reversed by the Denver-based U.S. Court of Appeals for the 10th Circuit.

The district court had said that the BCI official who actually terminated Peters was unaware of his race. However, the 10th Circuit found that a jury might reasonably conclude that Peters’ termination was based on his race because there was evidence that one of his supervisors, Cesar Grado, treated African Americans more harshly than other employees. The EEOC asserted that Grado made racial remarks about African Americans.

In a published opinion, 450 F.3rd 476 (10th Cir. 2006), the appeals court observed, “In making the decision to terminate...the human resources official relied exclusively on information provided by Mr. Peters’ immediate supervisor, who not only knew Mr. Peters’ race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace.”

The EEOC’s successful appeal was led by attorneys Lorraine Davis and Susan Oxford of the Office of General Counsel, Appellate Services, at agency headquarters in Washington, D.C. In reversing the lower court’s decision, the appeals court established an important legal doctrine applicable in the 10th Circuit, which includes New Mexico, Colorado, Kansas, Utah, and Oklahoma. Under this legal doctrine, called the “subordinate bias” theory, an employer may be liable for discrimination when it relies on comments from a biased subordinate supervisor when taking adverse employment action against an employee.

After the 10th Circuit ruling, BCI asked the U.S. Supreme Court to hear the case via a petition for a writ of certiorari. The high court accepted the case, and it was fully briefed and set for oral arguments. However, less than a week before the oral argument, BCI withdrew its appeal with no explanation and, subsequently, settled the case with the EEOC.

In addition to $250,000 for Peters, the EEOC’s two-year consent decree contains significant injunctive relief which applies to BCI and its managing agents at the Albuquerque facility. The injunctive measures require BCI to:

--Carry out policies and practices that promote a work environment free from race discrimination -- including a review of its existing policies on race discrimination and making any necessary changes so that those policies comply with Title VII of the Civil Rights Act;

--Distribute its policies to current employees and to new employees hired during the duration of the decree;

--Provide its employees with written policy statements regarding reporting and preventing racial bias;

--Post a Notice with a statement that Title VII prohibits race discrimination, and
provide employees EEOC’s contact information; and

--Hold training sessions with managers, supervisors and employees of the Albuquerque facility on Title VII and race discrimination.

The consent decree also prohibits BCI from retaliating against Peters or any witness in this case, and converting the official status of Peters’ firing to a voluntary resignation. Peters commented, “I want to thank everyone at the EEOC offices who worked on my case. I appreciate their support and their efforts on my behalf. I hope this resolution encourages employers to take their responsibilities to protect employees from discrimination seriously.”

EEOC Trial Attorney Veronica Molina-Cunningham, who prosecuted the case, said, “It is rewarding to see justice done in this matter, not only for Mr. Peters but also for other victims of discrimination who will benefit from the important legal doctrine that was established.”

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the agency is available on its web site at http://www.eeoc.gov.

Unwelcome Conduct and Severe/Pervasive Abuse

I remember receiving a handout from a former employer, which provided this notation about workplace harassment: “Whether or not harassment took place should be viewed from the perspective of the victim and not the accused.”

In line with that, the EEOC says: There are two requirements for race-based conduct to trigger potential liability for unlawful harassment: (1) the conduct must be unwelcome; and (2) the conduct must be sufficiently severe or pervasive to alter the terms and conditions of employment in the mind of the victim and from the perspective of a reasonable person in the victim’s position. At this point, the harassing conduct “offends Title VII’s broad rule of workplace equality.”

So, let's define these 2 requirements a bit more...

Unwelcome Conduct – In cases of harassment, the conduct must be unwelcome in the sense that the alleged victim did not solicit or incite the conduct and regarded it as undesirable or offensive. When the conduct involves mistreatment or is racially derogatory in nature, unwelcomeness usually is not an issue, even when the alleged harasser and victim are of the same race. Sometimes employers argue that the conduct in question was not unwelcome because it was playful banter, and the alleged victim was an active participant. The facts in such cases require careful scrutiny to determine whether the alleged victim was, in fact, a willing participant.

Severe or Pervasive Abuse - To violate Title VII, racially abusive conduct does not have to be so egregious that it causes economic or psychological injury. Harassment must be analyzed on a case-by-case basis, by looking at all the circumstances and the context. Relevant factors in evaluating whether racial harassment creates a sufficiently hostile work environment may include any of the following (no single factor is determinative):

The frequency of the discriminatory conduct;

The severity of the conduct;

Whether the conduct was physically threatening or humiliating;

Whether it unreasonably interfered with the employee’s work performance; and

The context in which the harassment occurred, as well as any other relevant factor.

The more severe the harassment, the less pervasive it needs to be, and vice versa.

Accordingly, unless the harassment is quite severe, a single incident or isolated incidents of offensive racial conduct or remarks generally do not create an abusive working environment. But a single, extremely serious incident of harassment may be sufficient to constitute a Title VII violation, especially if the harassment is physical.

Examples of the types of single incidents that can create a hostile work environment based on race include: an actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault), a favorable reference to the Ku Klux Klan, an unambiguous racial epithet such as the “N-word,” and a racial comparison to an animal.

Racial comments or other acts that are not sufficiently severe standing alone may become actionable when repeated, although there is no threshold magic number of harassing incidents giving rise to liability.

Source: http://www.eeoc.gov/policy/docs/race-color.html#VIIA

Questions Investigators Will Ask to Probe for Retaliation

Workplace retaliation is illegal under Title VII, which contains anti-discrimination, anti-harassment, and anti-retaliation provisions. The questions, listed below, come from the EEOC and provide you with an idea of the kind of questions an investigator will be contemplating, in the event you file a complaint of workplace retaliation. These are just some of the considerations that would be part of a formal complaint:

1. Did the employee oppose discrimination in the workplace? (retaliation based on a complaint of discrimination)

a. Did the employee explicitly or implicitly communicate to the employer or another covered entity a belief that its activity constituted unlawful discrimination under Title VII…?

b. If the protest was broad or ambiguous (an employee didn’t come right out and say they felt they were the victim of discrimination), would the employee’s protest reasonably have been interpreted as opposition to such unlawful discrimination?

c. Did someone closely associated with the employee oppose discrimination?

2. Did the employee have a reasonable and good faith belief that the practice they were opposing opposed practice violated the anti-discrimination laws?

a. If so, the employee is protected against retaliation, even if s/he was mistaken about the unlawfulness of the challenged practices. If not, the employee is not protected under the anti-retaliation clauses.

3. Did the employee participate in the statutory complaint process?

a. Did the employee or someone closely associated with the employee file a charge, or testify, assist, or participate in any manner in an investigation, proceeding, hearing, or lawsuit under the statutes enforced by the EEOC?

b. If so, the employee is protected against retaliation regardless of the validity or reasonableness of the original allegation of discrimination.

4. Did the employer subject the employee to any kind of adverse action? An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include: employment actions such as termination, refusal to hire, and denial of promotion and other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance [heightened scrutiny].

5. Is there direct evidence that retaliation was a motive for the adverse action?

a. Did the employer, manager, etc. admit that it undertook the adverse action because of the protected activity?

b. Did the employer, manager, etc. express bias against the employee based on the protected activity? If so, is there evidence linking that statement of bias to the adverse action? Such a link would be established if, for example, the statement was made by the decision-maker at the time of the challenged action.

6. Is there circumstantial evidence that retaliation was the true reason for the adverse action?

a. Is there evidence raising an inference that retaliation was the cause of the adverse action? Such an inference is raised if the adverse action took place shortly after the protected activity and if the decision-maker was aware of the protected activity before undertaking the adverse action.

b. If there was a long period of time between the protected activity and the adverse action, is there other evidence raising an inference that the cause of the adverse action was retaliation?

7. Has the employer produced evidence of a legitimate, nondiscriminatory reason for the adverse action?

a. Is the employer’s explanation a pretext designed to hide retaliation? (Readers: many employers come up with fraudulent, non-discriminatory reasons for adverse actions. These are called pretexts and have been discussed on this blog many times. A pretext is a cover story that is used to create a non-race related reason for events that have transpired at work. Any smart employer will try to come up with a good pretext, a legitimate reason for targeting an employee. This, an employer hopes, would prevent the company from being found guilty of violating Federal workplace statutes.)

b. Did the employer treat similarly situated employees who did not engage in protected activity differently from the employee?

c. Did the employer subject the employee to heightened scrutiny after s/he engaged in protected activity?

These are just some of the questions that an investigator will seek answer for. If, on the basis of all of the evidence, the investigator is persuaded that retaliation was the true reason for the adverse action, then "cause" should be found.

Source: http://www.eeoc.gov/policy/docs/retal.html

The EEOC E-Race Initiative

The Equal Employment Opportunity Commission (EEOC) has an initiative called E-Race, which works to identify and implement new strategies that will strengthen its enforcement of Title VII and advance the statutory right to a workplace free of race and color discrimination.

Specifically, the EEOC will identify issues, criteria and barriers that contribute to race and color discrimination, explore strategies to improve the administrative processing and the litigation of race and color discrimination claims, and enhance public awareness of race and color discrimination in employment.

Why did the EEOC come up with the E-Race program? Well, according to their website:

Color discrimination in employment appears to be on the rise. In Fiscal Year 1992, EEOC received 374 charges alleging color-based discrimination. By Fiscal Year 2006, charge-filings alleging color discrimination increased to 1,241. A recent study conducted by a Vanderbilt University professor “found that those with lighter skin earn on average 8 to 15 percent more than immigrants with the darkest skin tone -- even when taking into account education and language proficiency. This trend continued even when comparing people of the same race or ethnicity.” Similarly, a 2006 University of Georgia survey revealed that a light-skinned Black male with only a Bachelor's degree and basic work experience would be preferred over a dark-skinned Black male with an MBA and past managerial positions. However, in the case of Black female applicants seeking a job, “the more qualified or experienced darker-skinned woman got it, but if the qualifications were identical, the lighter-skinned woman was preferred."

New forms of discrimination are emerging. With a growing number of interracial marriages and families and increased immigration, racial demographics of the workforce have changed and the issue of race discrimination in America is multi-dimensional. Over the years, EEOC has received an increasing number of race and color discrimination charges that allege multiple or intersecting prohibited bases such as age, disability, gender, national origin, and religion.

Meanwhile, overt forms of race and color discrimination have resurfaced. In the past decade, some of the American workforce have witnessed nooses, KKK propaganda, and other racist insignia in the workplace. Racial stereotypes and cultural distortions continue to influence some decisions regarding hiring, discipline, evaluations, and advancement.

Finally, some facially neutral employment criteria are significantly disadvantaging applicants and employees on the basis of race and color. Studies reveal that some employers make selection decisions based on names, arrest and conviction records, employment and personality tests, and credit scores, all of which may disparately impact people of color. Further, an employer’s reliance on new technology in job searches, such as video resumes, could lead to intentional race or color discrimination based on appearance or a disproportionate exclusion of applicants of color who may not have access to broadband-equipped computers or video cameras.

E-Race has a specific set of goals and objectives that are outlined from 2008 through 2013. These goals include:

Improving Data Collection and Data Analysis in order to Identify, Track, Investigate and Prosecute Allegations of Discrimination;

Improving Quality and Consistency in EEOC’s Charge Processing and Litigation Program, and Improve Federal Sector Systems;

Developing Strategies, Legal Theories, and Training Modules to Address Emerging Issues of Race and Color Discrimination;

Enhancing Visibility of EEOC’s Enforcement Efforts in Eradicating Race and Color Discrimination; and

Engaging the Public, Employers, and Stakeholders to Promote Voluntary Compliance to Eradicate Race and Color Discrimination.

To find out more about E-Race, visit the EEOC web site or click one of the links below:

Sources: http://www.eeoc.gov/initiatives/e-race/goals.html and http://www.eeoc.gov/initiatives/e-race/index.html and http://www.eeoc.gov/initiatives/e-race/why_e-race.html

Employee Notification of Anti-Retaliation Policy Following Complaints

If you file an internal complaint at your company alleging that you are the victim of harassment or retaliation, your employer is supposed to inform staff that it will not accept you being subjected to any mistreatment, while your complaint is being investigated.

In addition, any employment decisions that are made, after you file a complaint, should be reviewed by your employer in order to ensure that the decisions are not a disguise for continued punishment. For instance, if you complain about harassment from your supervisor and your supervisor transfers you to an office that is isolated (a long and out-of-the-way commute, etc.), your employer should analyze the transfer and should reverse the supervisor’s decision, if it is determined that you were transferred based on your supervisor’s need for revenge.

The EEOC specifically says: An employer should make clear that it will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. An anti-harassment policy and complaint procedure will not be effective without such an assurance. Management should undertake whatever measures are necessary to ensure that retaliation does not occur.

For example, when management investigates a complaint of harassment, the official who interview s the parties and witnesses should remind these individuals about the prohibition against retaliation. Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives.

Source: www.eeoc.gov

Who Is Your Supervisor?

Harassment by a coworker is bad enough, but sometimes workplace harassment is instigated by a supervisor or someone in an employee’s supervisory chain of command. I think it’s important for African American workers to know that other employee’s may qualify as their supervisor, based on the role they play in assigning and monitoring employee workloads. Therefore, harassment by what may seem to be a coworker, may actually qualify as harassment committed by a supervisor, if that is the role the employee was serving—even temporarily. According to the EEOC:

An employer is subject to vicarious liability for unlawful harassment if the harassment was committed by a “supervisor” with immediate (or successively higher) authority over the employee. Thus it is critical to determine whether the person who engaged in unlawful harassment had supervisory authority over the complainant.

An individual who is authorized to direct another employee’s day-to-day activities qualifies as his or her supervisor even if that individual does not have authority to undertake or recommend tangible employment decisions (e.g., hiring, firing, demotion, transfer, etc.). Such an individual’s ability to commit harassment is enhanced by his or her authority to increase the employee’s workload or assign undesirable tasks, and hence it is appropriate to consider such a person a “supervisor” when determining whether the employer is vicariously liable.

An individual who is temporarily authorized to direct another employee’s daily work activities qualifies as his or her “supervisor” during that time period. Accordingly, the employer would be subject to vicarious liability if that individual commits unlawful harassment of a subordinate while serving as his or her supervisor.

Someone who merely relays other officials’ instructions regarding work assignments and reports back to those officials does not have true supervisory authority. Furthermore, someone who directs only a limited number of tasks or assignments would not qualify as a “supervisor.”

In some cases, an employer may be subject to vicarious liability for harassment by a supervisor who does not have actual authority over the employee. Such a result is appropriate if the employee reasonably believed that the harasser had such power. The employee might have such a belief because, for example, the chains of command are unclear. Alternatively, the employee might reasonably believe that a harasser with broad delegated powers has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the employee’s chain of command.

Source: eeoc.gov/policy/docs/harassment.html

First printed 8/06

LEGAL BRIEF: Only the Mental State of the Harasser is Relevant!

When racially-based issues take place in the workplace, employers like to use a few tactics:

--Deny everything!
--Blame the complainant by turning the victim into the bad guy and by pointing out alleged deficiencies with the victim’s behavior. In other words, they will justify why the victim was targeted for mistreatment.
--When backed into a corner, lay all of the blame on the offender and declare—as loudly as possibly—that the company’s higher-ups would have never tolerated illegal misconduct and would have immediately corrected inappropriate behavior, if they had only known about it.

I’d like to focus on #3 for a moment. You see, employer’s like to put all of the blame on a coworker or supervisor, after they see there isn’t any reasonable way they can claim that illegal misconduct didn’t take place. By laying blame on one or more individuals, many employers believe they can escape liability. They will try to make the illegal misconduct look like an anomaly and something that is extremely atypical of what would normally occur in their workplace.

So, the employers will be spitting all of this venom and fire about how horrible the offender was and how they were a rogue employee that went off the rails. The employers will position themselves as rationale, fair, and helpful in the hopes they can escape liability.

But, in the Supreme Court decision for Kolstad v. American Dental Association, 119 S. Ct. 401, (1998) it says, “The test for imposition of punitive damage is the mental sate of the harasser, not of the higher-level officials…”

Therefore, it doesn’t matter how reasonably or fairly the employer may have acted or would have acted; they are still liable for the illegal behavior of their staff, supervisors, etc.

The EEOC states that:

“…an employer is liable for punitive damages if its supervisor commits unlawful harassment or other discriminatory conduct with malice or with reckless indifference to the employee’s federally protected rights.”

So, don’t let an employer sweet talk you into believing that you have no way to seek remedies outside of whatever they may or may not decide to do—in the workplace—to your harasser. Your employer may still have legal liability and may have to pay punitive damages to you, depending on the specific circumstances.