Michael Cooke alleged that the co-worker routinely listened to — and rapped along with – music prominently featuring racial epithets including the N-word.  According to the EEOC, Cooke complained to supervisors that the music was offensive but the co-worker kept rapping and the company failed to take necessary corrective action for more than a year.

“The EEOC is not in the business of judging anyone’s musical tastes, but we are concerned when we find that an employer failed to respond promptly after being put on notice of racially offensive language or conduct in the workplace,” said Regional Attorney William Tamayo.

The settlement was part of a two-year consent decree under which the company agreed to adopt a zero-tolerance harassment policy and to specifically identify offensive music as a potential form of harassment in the policy. 

“We commend the company for resolving this action and for agreeing to modify its anti-discrimination policies,” said Tamayo.

The Lesson

In commenting on lessons employers might glean from this case, EEOC District Director Michael Baldonado said:  “How do you manage the culture clash — across generations, race and ethnicity, you name it — in a workplace that gets more diverse every day?  I think it’s critical to try to put yourself into the shoes of the other person and take all complaints of discrimination seriously.  Together we can try to defuse tensions and prevent situations from developing into discrimination and harassment.”

Well said.

The lawsuit alleged that Kroger discriminated against African-American employees in Alabama, Georgia, Kentucky, Ohio, Tennessee and Texas in promotions and pay.  The plaintiffs also alleged that they were subjected to racial harassment.

In addition to the $16 million, a proposed consent decree would require Kroger to:

• establish minimum qualifications for all management positions 
• create a pay rate monitoring system that would allow store manager decisions to be overturned if unfair
• provide an annual report, including salary and promotion data, to the plaintiffs’ law firm

Kroger sent a letter to its employees that said:  “The plaintiffs who initiated this lawsuit seven years ago obviously felt strongly that the company was not treating them fairly or respectfully.  No one in our company should feel this way.”  The company added:  “We have taken steps over the past several years to build an inclusive culture that demonstrates our commitment to all associates.”  Among other things, the company said it has hired a chief diversity officer and created cultural councils to help promote inclusiveness.

In the latest case, Conectiv Energy and three of its subcontractors agreed to pay $1.65 million to settle discrimination claims brought by four African-American employees who alleged they were subjected to egregious racial harassment, including racial slurs, KKK graffiti and nooses hanging in the workplace.

According to the EEOC, the harassment included:

• a life-size noose that hung from a beam in the workplace for more than ten days;
• repeated use of the “N-word” and other racially offensive comments; and
• racist graffiti in work areas, including statements professing hatred for African-Americans and love for the KKK.

In addition to the payments, the companies agreed to four-year consent decrees that enjoin them from engaging in racial harassment and retaliation and that require comprehensive anti-discrimination training, the posting of notices describing the settlement and reporting future complaints of harassment to the EEOC for monitoring.

The lesson?  In the words of EEOC District Director Marie Tomasso:  “Employers risk intervention by the EEOC when supervisors ignore racially offensive working conditions and fail to take prompt and effective remedial action to stop it.”

What should employers do?

Enforce EEO Policies and Investigate Claims.  As this and other disturbingly similar cases we’ve discussed illustrate, failing to adhere to anti-discrimination and anti-harassment policies can have drastic consequences.  Investigate all claims of discrimination fairly and thoroughly and take appropriate disciplinary action promptly and consistently.

Embrace Diversity.  As discussed in one of our Questions of the Week, diversity training alone does virtually nothing to improve workforce diversity.  Experts recommend a variety of mechanisms to supplement diversity training, including:  (1) accountability at the top; (2) mentorships; (3) creating a diversity point person or task force; and (4) recruiting from a wide variety of sources (e.g., minority colleges).  Diversity is far more than a feel-good program.  It’s an absolute business necessity.  Companies that start taking steps to build a diverse workforce will be ahead of the pack as the talent crunch continues to intensify.

The settlement resolves a March 2007 lawsuit in which the EEOC alleged that the nation’s largest drugstore chain discriminated against African-American employees by making store assignments and denying promotions on the basis of race.

The settlement mandates comprehensive injunctive relief, including extensive training and a requirement that the company retain an external consultant to conduct an audit of the company’s employment practices.

EEOC General Counsel Ronald Cooper said the case is “a good example of the commission’s renewed emphasis on class and systemic litigation and furthers the agency’s E-RACE Initiative, which is designed to address major issues of race and color discrimination.”

Walgreen’s made no admission of liability and says that it voluntarily entered into the settlement “because the actions it has agreed to undertake underscore its strong commitment to diversity and equal opportunity.”