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H&R Weekly

H&R Weekly (2/24/20)

Topic of the Week  Racial Harassment

  • After I was harassed, I found a new job that also pays me more money. Is there anything I can do since I wasn't fired and didn't lose money as a result?
  • I was harassed by my coworkers. Is the company legally responsible?
  • I was harassed by my boss. Is the company legally responsible?

After I was harassed, I found a new job that also pays me more money. Is there anything I can do since I wasn't fired and didn't lose money as a result?

Legally speaking, a company that is otherwise liable for harassment is liable whether or not you suffered any wage loss or even any psychological harm.

Practically speaking, if you have not suffered any wage loss or significant emotional harm, it may be difficult to find an attorney to take your case, since it may be difficult for you to be awarded the type of money damages that make certain cases economically feasible to pursue. Before determining whether to take legal action or file a complaint, you should consult with one or more attorneys to determine whether your case is the type of case that a lawyer will be willing to pursue on your behalf.

I was harassed by my coworkers. Is the company legally responsible?

It depends. When harassment by co-workers or even a supervisor creates an unlawful hostile environment, but does not result in a tangible employment action (hiring, firing, denial of a promotion, or other tangible actions), the employer can avoid legal liability (called an "affirmative defense") if both of the following elements are present:

  •  the employer exercised reasonable care to prevent and correct promptly any harassment; and
  •  the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Both elements of the affirmative defense must be present: for example, if unlawful harassment by a supervisor occurred and the employer failed to exercise reasonable care to prevent it, the employer will be liable even if the employee unreasonably failed to complain to management or even if the employer took prompt and appropriate corrective action when it gained notice.

Before determining whether to take legal action or file a complaint, you should consult with one or more attorneys to determine whether your employer is likely to be able to successfully use the affirmative defense to your harassment claim.

 I was harassed by my boss. Is the company legally responsible?

An employer is always legally responsible for harassment by a supervisor that culminates in a tangible employment action. The company cannot avoid legal liability on the basis that you did not complain about the harassment, or because it took other steps designed to discourage workplace harassment. The Supreme Court recognized that this result is appropriate because an employer acts through its supervisors, and a supervisor's undertaking of a tangible employment action is equivalent to an act of the employer.

If you have been harassed by a supervisor, you should consult with an attorney to determine whether you have been subjected to a tangible employment action. If you have been, then you would be entitled to pursue a lawsuit to recover for the harm you have suffered, including lost wages and psychological harm.

Thought of the Week

"It is essential that we shine a light on the immense contributions of black Americans in politics, business, art, science, and civic life. But if we just celebrate, we’re ignoring the harder truth that racism continues to hold black professionals back from leadership roles in corporate America. Workplace racism can end only when employees who are not black see, hear, and accept the truth about what their black colleagues have experienced and continue to experience. Black History Month is a great opportunity to begin this process."

–Trudy Bourgeois and Julia Taylor Kennedy

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

List of the Week

from Center for Talent Innovation

Enforcement and Litigation Report

  • 58% of black professionals have experienced racial prejudice at work—a higher percentage than any other racial or ethnic group surveyed.
  • Black adults hold only 8% of professional jobs and 3.2% of executive or senior-level management positions. 
  • While 65% of black professionals say that black employees must work harder to advance in their careers.

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