Discriminatory Comments in the Workplace: Proper Response is Key
From the Paula Deen debacle of 2013 to Kristi Capel’s recent newscast commentary, examples abound of insensitive, improper, and arguably, discriminatory comments in the workplace. These inappropriate comments and the subsequent public outrage demonstrate the importance of an employer’s establishment of strict policies prohibiting unlawful discrimination and harassment, whether intentional or unintentional, in the workplace. Employers should not only set policies prohibiting such behavior, but also, establish procedures for reporting and investigating complaints of such behavior at work.
Employers are also well-advised to create policies for responding to discriminatory behavior by employees. For instance, when news anchor Kristi Capel used the racially offensive term “jigaboo” when speaking to her African-American co-anchor in a discussion about the Academy Awards, her employer, Fox 8, immediately responded by removing Capel from morning newscasts for a few day. Fox 8 then released the following statement:
“Kristi apologized on air . . . . [There] is no excuse for using [such language]. We have spoken with her and are confident nothing like this will happen again.” Capel, for her part, stated during her next morning appearance: “I deeply regret my insensitive comment. I didn’t know the meaning and would never intentionally use hurtful language. I sincerely apologize.”
As captured by Fox 8's response, Title VII does not require that an employer deploy the most severe corrective action in response to racial insensitivity or discrimination in the workplace, but the federal law does require that employers institute some form of corrective action that is reasonably likely to prevent the harassment from re-occurring.
In contrast to Ms. Capel and Fox 8, you may recall that domestic diva Paula Deen, acting as owner of a restaurant, did not take her own insensitive comments as seriously. In 2013, Paula Deen was the topic de jour after her deposition testimony in a federal employment law case went viral. As background, Deen’s former employee filed a sexual harassment and racial discrimination lawsuit against Deen, Deen’s brother, Bubba Heirs, and the pair’s Savannah, Georgia restaurants, Lady & Sons and Uncle Bubba’s Seafood and Oyster House. The former employee alleged that during her tenure as manager of Deen’s restaurants, she was subjected to daily discrimination and harassment, creating a hostile work environment. Deen revealed in her deposition that, “Yes, of course,” she had used the “N” work in the past when referring to African-Americans, but it has “been a very long time[.]” Later, when asked whether she thought jokes using the “N” work were “mean,” Deen explained that "most jokes are about Jewish people, rednecks, black folks . . . . I can’t, myself, determine what offends another person.”
Within days of the filing of this deposition testimony, the Food Network cancelled the show that made Deen famous, “Paula’s Home Cooking,” and released a statement that the network did not support discrimination in any form or fashion. Shortly thereafter, Deen’s business relationship with Wal-Mart, Target, Home Depot, Smithfield Goods, Caesar’s Entertainment, QVC, and J.C. Penney were terminated by the respective companies. Deen has since largely recovered from her careless commentary, but the lesson is clear - tolerance of intolerance is unacceptable in the workplace, to the public and under Title VII.
Employers have an obligation to promote compliance with Title VII of the Civil Rights Act of 1964. Title VII makes it an unlawful employment practice for an employer to discriminate against any individual with respect to his or her terms, conditions, or privileges of employment on the basis of such individual’s race, color, religion, sex, or national origin. Similarly, Tennessee law, under the Tennessee Human Rights act, prohibits discrimination and harassment based on these protected characteristics. The importance of dissuading discrimination and harassment in the workplace cannot be understated. If you are an employer without a proper policy against discrimination in the workplace, please contact me. An avid proponent of litigation prevention, I frequently author policies against discrimination and harassment, as well as offer tailored training on proper complaint, investigation, and response procedures. If you have any questions on providing such valuable, litigation-reducing training in your workplace, give me a call.