Question: We recently received a discrimination and harassment claim from a former employee who quit his job. This is the first we’ve heard about these issues; they were never reported to HR. We can’t be liable for claims that were never reported, right?
Answer: Wrong, you could be liable. Employers are legally responsible for any harassment or discrimination against their employees that the company knows about, or should have known about, and fails to stop. An actual complaint to management or HR may not be necessary for the employer to be liable. If harassing or discriminatory behavior is frequent, or commonly known among employees, a court may decide the company should have been aware of it. Also, in the eyes of the law, the company “knows” everything that a manager knows. That means if a manager, operational supervisor, lead worker, or someone else with authority to enforce company policies or monitor employee performance witnesses bad behavior, then the company “knows” about it and can be held liable.
Employer Accountability for Harassment Starts with Supervisors Knowing
A recent federal case provides an example of how a company can be liable for bad behavior even before an employee complains to HR. The Hispanic employee who brought the case worked on a construction crew with a white coworker who frequently made jokes and slurs targeting Hispanics and African Americans. Other members of the crew heard his racist remarks, including the African American foreman who laughed at the daily comments. Eventually, the employee complained to HR and both the coworker and foreman were disciplined, but the court found that the employer was on notice of the discriminatory and harassing behavior as soon as the foreman knew about it. The court reasoned that since the foreman had authority to direct the offending employee to stop making the racist remarks, or take other action to address it, that was enough to consider the company on notice of the misconduct and liable for any harassment (Govea v. CB&I LLC, WD La, Oct. 2024).
Training Supervisors to Enforce Workplace Standards and Prevent Liability
To minimize your liability, be sure to train all levels of managers and leads on where and how to draw the line with their crew on what is and isn’t allowed in your workplace. Be clear that it’s their responsibility to stop offensive behavior, and to report the behavior to HR or upper management immediately. For more information, see our Legal Guide, Harassment in the Workplace: Avoiding Liability, and members, talk with your Vigilant Law Group employment attorney about training to prevent harassment.
Don’t wait until a claim surfaces to address harassment and discrimination risks. With Vigilant membership you can proactively protect your company from liability.
