A New Approach and An Old Subject

I've been silent for a long while - too long - largely because of the press of work, the holidays, and the feeling that blog posts were repeating topics already addressed.   It has become obvious that I simply do not have the time to post lengthy blog posts along the lines I have previously done.   What I hope to do is put up shorter posts on more basic subjects but also post, as the issue arise, links to decisions that impact Tennessee employers. I welcome your comments on the new approach.

There was, as  a matter of fact, a rather interesting racial harassment appeal arising out of Maine.  It touches on the issue of when discipline for harassing conduct was adequate even if not fully effective in preventing future harassing conduct.  Employer encounter this a good bit. 

Two of the black plaintiff's co-workers made overtly racial remarks (not the kind I will repeat here though they are set forth in the decision).  He complained and the company owner "became irate and berated the men, making clear that such misconduct unacceptable" and that a repeat performance would result in their termination. The warning wasn't entirely successful but the plaintiff never again complained to the company owner, choosing to file a lawsuit after leaving employment due to a work related injury.

Siding with the employer, the court's decision has several good statements about the duty an employer has when an employee complains about harassing conduct:

• there is no legal rule that requires treating hateful speech as the workplace equivalent of a capital
  offense
• the imposition of employee discipline is not a rote exercise, and an employer must be accorded some flexibility in selecting condign sanctions for particular instances of employee misconduct.
• The plaintiff's argument that the sanction must have been inadequate because it was ineffective to stop the harassment is nothing more than a post hoc rationalization.  An employer's disciplinary decision must be evaluated in real time; it cannot be evaluated in hindsight.

You can read the full decision at http://www.ca1.uscourts.gov/pdf.opinions/10-1387P-01A.pdf