Hostile work environment
scorp11764
2 Posts
Hello--
I currently work for a small pharmaceutical company. My direct manager is creating a very hostile work environment. To give you some details, the manager is a black man who was a Marine. It is completely obvious that he does not like white women over 40 unless of course they have a great figure and low self-esteem. Myself and my co-worker are the same age,44 and we have a few extra pounds. We are both very intelligent and he can BS us. Our company is predominantly white and he has said to others that by time he is thru he s going to make the company all black, starting first with our department. It is just hell. There is one much younger female in the department but she is also black and very flirtatious which he eats right up. She can come it late, like a half hour and leave early every day but nothing is said. Yet if my co-worker or I need time off, it the 3rd degree. I could go on for hours and hours about how horrible this man is but I don't want to take up your time. What I would like to know is have you ever seen or heard of an employee resign from a company and then successfully sue for hostile work environment and discrimination??
Thanks.
Comments
I agree with Joy. Go through the proper channels at your company first. Document everything. Put it into writing. Ask for responses in writing. Document exactly what was said, to who and whether there were any witnesses.
Realize that it is the employer's responsibility to make sure the behavior stops and that retaliation does not occur. They do not have to tell you what they do to stop the behavior. They do not have to tell you how they disciplined the employee. They do not have to terminate the employee. If the behavior stops, then all is well. If it does not, then take your claim to the EEOC.
There are two separate issues here. One is sex and/or age based harassment. The other is constructive discharge.
Harassment
You can't sue on an issue like this without permission from the EEOC. The EEOC is unlikely to give you the time of day until you have gone through the company's internal procedures. Technically, you can sue, but defendant's attorney will argue that you have not exhausted your administrative means and the case will not proceed. Document, document, document, as others have said. Keep good notes at home. Try to ensure that you have a witness around when your manager says these types of things. Advise that person, if you are close to them, to start documenting, also. Make a formal written complaint to HR. Now, it's well known that you are protected from retaliation by the manager but a lot depends on how good your HR team is.
If I were you, I would see about making that complaint at the same time as your friend, if you are both affected parties, and make it clear that you are "acting in concert". That invokes the National Labor Relations Act which protects when they engage in protected concerted activity, which includes working for their mutual benefit or protection. The National Labor Relations Board, which is responsible for enforcing the Act has become very aggressive about this sort of thing. They've even essentially trumped some laws with the NLRA and won out in court.
If the nonsense from the manager doesn't stop by the next day, continue to document the continued attacks, and go back to HR with your coworker and make sure they know that it's not stopped. They have a burden to investigate very quickly and if this guy is saying things like this in front of even one more employee, it's pretty much a lock that he's going to be given some direction from HR that should stop any further abuse. If your company does not have a policy against recording conversations, it's now legal in most states to do so provided at least one party to the conversation is aware that it's being recorded. Check with counsel if it gets that far. Alternatively, if you don't have a variety of good witnesses to the differences in treatment, the racially hostile comments, etc. then you may want to look into the recording route first.
Constructive Discharge
Constructive discharge, in a nutshell, is when someone quits because they were subjected to working conditions that no reasonable person would endure. Essentially, a situation in which a person was "forced" to quit. This isn't always easy to prove, especially if you've endured the harassment for some time as it is commonly held that there has to be some recent material change in the terms and conditions of your work or the context of your work to make this fly. However, this will vary from state to state or, depending on the theory of law applied, from circuit to circuit. That is, if you were constructively discharged to make room for the manager's friend to take the job and the means of the cosntructive discharge did not involve federally protected properties, then it would more likely be a state issue but the employer could be forced to demonstrate that federally protected properties were not involved. In your case, it has "federal" stamped all over it.
If you make your report and you provide witnesses and detailed notes or, at least, read from your detailed notes to them, and you have sufficient information for a reasonable person to believe that your manager is doing something bad, then the employer has to take steps. If the manager continues or, if things get worse, your attorney may advise you to quit and file a constructive discharge claim in combination with a retaliation lawsuit. Employers typically win the initial claim because agregious discrimination isn't as common as some people think and companies are generally willing to stamp it out and make victims whole without the coercive power of the state being applied. However, companies end up doing very poorly in retaliation claims and your manager sounds like a typical retaliator. If you are feeling aggressive, you may want to tell HR on the first visit that you are aware that companies generally do a pretty good job of protecting employees from illegal discrimination but that they generally do a poor job of preventing retaliation and that you'd just like to come to work the next day and not have to worry about it. I'm sure they'll take you seriously if your documentation and available witnesses are in place.
Thank you so much for all your excellent advice. I have been documenting my life away and so has the other afflicted emp. We took our issues to our HR Manager but she is a poor excuse for an HR professional. She is too busy looking in her mirror. So we went to HER manager, the VP of HR. We presented our case so not lets see.
Thanks again!!
I'm sorry that you have had to deal with this and then on top of it, don't get any help from your HR Mgr. It is because of people like this HR Manager that HR can get a bad rap. Those of us that are serious about HR know that this is not something to play around with or ignore. That is why you have been given the advice you have by people here. We all care about our employees and employer and don't want to see things like this happen where we work. Let's hope that the VP of HR will help you with this situation.
Keep us posted on how things go. Best of luck to you.
I suggest that you and the other offended party tell the offender about your concerns with the work environment. Have your H.R. representative present during the discussion for proof that you expressed your concerns to the offender. If this step is not taken, the offender can say that he didn't know his words or actions were offensive to anyone. That may be all that is needed to remedy your situation.
If the hostility continues, or you are subjected to retaliation, take the concerns to the next level within the company and, if needed, your state HRC.
I know that we usually prefer that people resolve their own issues so that HR resources are not tied up in babysitting. However, I don't think this is a do-it-yourself situation and here's why:
It's not really the employee's responsibility to tell the offending party that what they are doing is offensive. It is even less so an issue for the employee when their problem is with their own supervisor. It is, however, the employer's obligation to protect employees from that sort of thing, particularly so once it seems likely that the reasonable person standard has been met. Moreover, it is in the Company's best interest to do so when there is a possibility of management-subordinate harassment. For what it's worth, I suspect that "[...]he has said to others that by time he is thru he s going to make the company all black, starting first with our department" would be considered offensive to a reasonable person (meaning a majority vote on a jury).
Which of the following is going to be acceptable under the reasonable person standard?
"He has said to others that, by the time he is through, he's going to make the company all white, starting first with our department."
"He has said to others that, by the time he is through, he's going to make the company all Yellow, starting first with our department."
"He has said to others that, by the time he is through, he's going to make the company all Red, starting first with our department."
"He has said to others that, by the time he is through, he's going to make the company all Arab, starting first with our department."
"He has said to others that, by the time he is through, he's going to make the company all Spanish speaking, starting first with our department."
"He has said to others that, by the time he is through, he's going to make the company all Chinese, starting first with our department."
I can understand why someone may want to have a face to face meeting to confront the issue. I can also see HR hearing the request for the meeting and requiring the parties to avoid each other while HR conducts an investigation, which is a likely event given that the request amounts to informing the Company of a concern about a racially hostile work environment, which triggers the requirement that the Company investigate. If someone came to you and said that their boss wanted to get rid of them because of their race and they wanted to talk to their boss to tell them that wasn't OK, that's in a whole different category from someone doing things that might be construed as joking around but was offensive and not being taken well and, therefore, requires a different treatment.