Racial Harassment. Sometimes racial discrimination in the workplace does not involve a concrete job action like a firing or a demotion. Rather, in some cases,  the discrimination takes the form of racial harassment like racially abusive language or bullying, which causes  minority employees to experience a racially hostile environment.  In cases where the racial harassment is particularly severe, or happens regularly and often enough to change the terms and conditions of employment, an employee may have a “racially hostile work environment” claim under Title VII or the LAD.

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However it’s not that simple. This is because with both Title VII and the LAD, you can’t usually sue the actual person who is harassing you.  Instead, you sue your employer for failing to protect you from the harassment. Ultimately, there are two ways you can hold your employer liable for racial harassment by another employee. 

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The first way is to show that your employer was negligent in failing to either prevent or correct the harassment.  An employer can be liable for failing to prevent the harassment if it does not have an effective anti-harassment policy. The New Jersey Supreme Court has identified five elements to an effective harassment policy. These are:

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(1) formal written policies prohibiting racial harassment in the workplace;

(2) formal and informal complaint structures for employees to report racial harassment;  

(3) anti-harassment training, which must be mandatory for supervisors and managers and available to all employees;  

(4) effective sensing or monitoring mechanisms to check the trustworthiness of the written policies and complaint structures;  and

(5) an unequivocal commitment from the highest levels of the employer that harassment will not be tolerated, and demonstration of that policy commitment by consistent practice.

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If an employer does not have each of these five anti-Harassment measures in place, and racial harassment in the workplace occurs, a jury may find the employer was negligent in failing to prevent the harassment and hold the employer liable.

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An employer may be liable for negligence in failing to take effective steps to end harassment.  If an employer knows or should know that one employee is racially harassing another, the employer must take “effective” measures to end it. This may be as simple as warning the harasser that further harassment will not be tolerated or as drastic as permanently removing the harasser from the victim’s work environment. If the harassment continues, it is the jury’s job to decide whether the employer is liable for negligence in failing to end the harassment.

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Beyond negligence, the other way an employer may be found liable for harassment by one of its employees is if it is shown that the employer gave the harasser authority to control the victim’s work environment, and the harasser used that authority to make the victim’s work environment  racially hostile.

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How We Can Help. At Lawrence & Gerges we have a lot of experience with workplace harassment.  In fact in 2002, Mark C. G. Lawrence represented the plaintiff in the harassment case of Gaines vs. Bellino, which went all the way up to the New Jersey Supreme Court.  In that case, Mark’s argument convinced the court to expand the ways in which an employer could be held responsible for workplace harassment by its employees.

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If you are experiencing racial harassment in the workplace, call us for a free consultation where we can discuss your options. We can help you force your employer to take appropriate action to end the harassment, or, if the harassment continues we have the trial skills and experience to take your employer to court in a lawsuit for money damages for emotional distress, attorney’s fees, and even punitive damages. 

 

As always, if we believe you have a strong enough case, we will represent you on a contingent basis where you pay no money up front, and we only get paid if and when we recover money for you.

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