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Trump-Like Comments in The Workplace Put Small Businesses at Risk for Litigation

Regardless of your views of his economic strategy, it’s no secret that President Trump uses offensive language to describe an individual’s or a group’s national origin. In speeches, he has described Mexican immigrants as “drug dealers, rapists, and criminals.” In other statements, he said all Haitians have aids and Nigerians should go back “to their huts.” In July of 2019, he tweeted that four, non-white, female, US citizens and Democratic members of the House should “go back” to “the totally broken and crime-infested places from which they came.” Comments like this are being picked up in colloquial speech and repeated at work, where they have real consequences for businesses.

Whether a colleague or a supervisor, any employee in the private or public sector that is allowed to target or harass another employee with verbally abusive language about their origin can face termination. Small businesses and companies that allow this type of behavior can face hefty fines from the EEOC based on the National Origin Discrimination law under Title VII. Note that immigrants are also protected under federal antidiscrimination laws.

According to a Washington Post column, the EEOC has won settlements for a dozen employees who have successfully sued their employers for offensive language and ‘go back’ comments.

Here are a few national origin discrimination lawsuits filed this past month by the EEOC, from large settlements to minor fines, on the behalf of employees:

La Cantera Resort and Spa, San Antonio Texas to settle a National Origin Discrimination Lawsuit for $2.6 Million

According to the EEOC’s lawsuit, managers strictly forbade banquet servers from speaking Spanish at any time, anywhere on the resort property. Managers referred to the Spanish language as ‘foul’ and used derogatory names to describe the Hispanic staff. When staff raised concerns, they faced retaliation by the employer. Some were demoted while others were fired and replaced with white employees. The resolution of this case requires La Cantera to pay the 25 plaintiffs $2.6 million in damages. In addition, they must also provide training on Title VII as well as post notice of their intent to comply with federal law.

Takeaway: In working with small businesses, we fund it’s beneficial to train managers to resolve potential issues before they escalate to unlawful discrimination. When creating a management training program, be sure to include their responsibilities in meeting compliance with federal law under Title VII. Also every manager should understand what reasonable accommodation means, how to respond to discrimination complaints and how to avoid retaliation of any employee who reports discriminatory actions whether verbal or physical.

Dry Cleaning Company settles for $20,000 in EEOC’s National Origin Discrimination Charge

A small dry-cleaning company in Illinois has agreed to pay $20,000 to an employee who was subjected to verbal harassment which included taunts about his national origin by other employees. Via text messages to his manager, he complained about the derogatory names he was called, yet no action by his manager was taken. The employee then filed with the EEOC and in their investigation found that the text messages relevant to the case were erased.

Takeaway: Besides the $20,000 settlement to the employee, the dry cleaning company has agreed to provide an anti-harassment policy that prohibits harassment against any employee for their race, color, religion or national origin. The policy must expressly state that any employee, who has filed a charge that is unlawful according to the EEOC, must not face retaliation by their employer. In this particular case, the employer is required to provide civility, bystander and EEOC compliance training to all employees. It’s also important to note that under an EEOC investigation, employers are required to provide all documentation, even text messages or social media posts, related to the case once it is filed.

Overall, Trump’s comments have put a spotlight on hate speech and offensive language used to describe someone’s national origin in the workplace. From the above EEOC cases, managers and supervisors are held to a higher standard and should assume responsibility when responding to complaints from employees.

As for witnesses, or what the EEOC terms as ‘bystanders,’ they also have a responsibility to their colleagues. Based on the situation, employees have options to use any of the four best practices used to intervene in a safe and non-hostile manner. Besides reporting the misconduct, bystanders can disrupt the harasser by changing topics. If in a safe situation, they can confront or speak up to the harasser by stating that their behavior or actions are unacceptable, and they may see their comments as futile and back away from potentially hostile action. Lastly, showing support, whether talking to those who were harassed verbally or walking them to the human resource office, shows solidarity and avoids the isolation many victims feel.

While all of the above responses sound like great answers to potential discriminatory actions, they can’t take place without the support of small business owners. Small business owners need to send a clear, consistent message that this type of behavior or “go back’ comments and language are not tolerated and those who do participate can expect either written warnings or face termination. All small businesses need to uphold anti-discrimination laws if they want their organizations to have the reputation of a safe, respectful and vital workplace.