Of course, you’d have to live in the deepest of caves to not be aware of recent, major political stories concerning President Trump’s executive orders and other actions. More specifically, just days into his administration, President Trump’s executive order regarding immigration stirred protests across the country. Still, the most recent polling data shows that Americans are fairly equally divided on approval of President Trump’s biggest headline-making action. A poll released Wednesday, February 8, 2017, showed that 55% of voters either approve or strongly approve of President Trump’s controversial immigration executive order.
Polls such as these demonstrate that the chances are pretty good your workforce is just as divided over these issues. Moreover, at least a part of your workforce likely consists of one or more individuals who were born in another country. In 2015, around 16.7% of the U.S. labor force consisted of foreign-born persons according to the Bureau of Labor Statistics. Numbers such as these go to show that there are likely people who are directly or indirectly affected by these issues and certainly people who are passionate on both sides.
Ok, get to the point. What I mean to communicate with this post is that now more than ever employers need to be mindful of supervisor and other employee training on discrimination and harassment on the basis of protected classes established by federal, state, and local laws. More specific to recent headlines, national origin discrimination is prohibited by Title VII of the Civil Rights Act of 1964 and the Wisconsin Fair Employment Act. These protections for individuals include barring a hostile work environment against individuals based on their national origin. In politically divisive times such as these where individuals can get carried away and may escalate political topics into offensive conduct, it is important to be proactive and take steps to maintain a respectful workplace.
The U.S. Supreme Court has recognized that employers cannot always control everything that happens in their workforce. That is why discrimination and harassment training is critical to what is known as the Farragher–Ellerth defense. In each of these cases, the Supreme Court laid out two elements to avoid liability in the face of hostile work environment claims:
The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Two critical components of this defense are employer policies and training. First, employers should clearly identify for employees that the employer does not tolerate unlawful discrimination and harassment. Any policy should also provide a reporting and investigation procedure for individuals to go to when they feel something in violation of the policy has occurred. Two, don’t just sit on your policy. Annual supervisor training should be conducted at minimum. Supervisors are where the rubber meets the road for any workplace. These individuals should have some guidance to identify what is unlawful and needs to be reported. A better practice is to remind all employees of the policy and reporting procedure on a regular basis. This training can be conducted by knowledgeable human resources staff, if available, or your favorite attorney who is knowledgeable about these issues and relevant laws.
While every circumstance that is the subject of litigation is unique, proactive employers that aim to avoid employment law claims should make employee discrimination and harassment training a standard practice. This serves as a reminder to employees that while we all hold different opinions on political topics, it is not acceptable to create an offensive work environment on protected classes such as where a person came from.