An employer’s duty to respond to racist symbols or messages

A black autoworker at a California factory won a $3 million award for suffering frequent racist misconduct in the workplace. 

Many employers state that they will punish and even fire employees who engage in racially-motivated misconduct, including graffiti, oral attacks, or unfair treatment.  Sometimes this kind of misconduct can be repeated, however, turning up in bathrooms, locker rooms, or on the production line. In restaurants and stores, misconduct may be reflected in the demeanor of cashiers or wait staff who deal with black or Latino customers, or the attitude of supervisors towards minority employees, sometimes especially minority employees of a certain gender.

Under federal law, an employer may be financially responsible for superiors who engage in or tolerate racial or harassment of employees, which results in “a hostile work environment” amounting to job discrimination.  Employers attempt to avoid this liability by enacting an anti-harassment policy.  If the policy is not reasonably developed or implemented, or harassing behavior is not promptly corrected, this defense may not be applicable, however.

Insights from New York law

In New York City, lobal law prohibits discrimination on the basis of race, gender, national origin, ethnic group or color, citizenship or immigration status, disability, familial status, marital status, sexual orientation, gender identity or expression, status as a victim of domestic violence, military status, age, or certain genetic characteristics. One section states that an employer may be liable for discrimination by employee or agent when the employee or agent is a manager or supervisor, the employer or its supervisors knew about the discrimination and “failed to take immediate and appropriate corrective action,” or the “employer should have known of the employee’s or agent’s discriminatory conduct and failed to exercise reasonable diligence to prevent” it.

In 2010, the New York Court of Appeals ruled that New York city law is broader than federal law, which allows a defense of “affirmative anti-discrimination policies.”  New York City has a policy of “[s]trict liability in employment context for acts of managers and supervisors,” although an employer can reduce the civil penalties and punitive damages it owes a worker “by showing affirmative anti-discrimination steps it has taken.” 

New York State, by contrast, may create liability “where the employer encourages, condones or approves the unlawful discriminatory acts.”  This area of law has often been applied to universities and K-12 schools, as well as towns and villages in New York state, and departments of New York City like the police department.

Next steps

It is important to know your rights when it comes to harassment, discrimination, and retaliation for making complaints. A free consultation can help you understand your rights and take action to protect them.