Corporate America often complains that it is too easy for employees to file frivolous lawsuits, especially lawsuits based on alleged discrimination. Certainly, there are employees who file meritless lawsuits. It is also true that given the promulgation of the ADA, ADEA, EPA, ERISA, FMLA, OSHA, Title VII, and a number of other laws and regulations that govern the workplace, almost everyone falls within some protected classification. Statistical data further suggests that defending discrimination claims has become as much a part of day-to-day business as managing inventory. For example, in FY 2013, the EEOC received an amazing 93,727 charges of discrimination. On the bright side for employers, this was a decrease from the 99,412 charges filed in FY 2012.
While employers have valid concerns about the legal system, there are numerous situations where employers, through the foolish conduct of their employees, are responsible for becoming the target of discrimination claims. In fact, many claims could be avoided if employers followed one simple principle: Do not say insensitive things to employees in the workplace. In other words, think before you speak.
The genesis of most discrimination claims is an employee’s belief that he or she was treated differently or unfairly. An employee’s belief is solidified when management makes some kind of insensitive remark about the employee’s protected characteristic (such as race, sex, ethnicity, religion, national origin, age, or disability). These types of remarks can be used as circumstantial evidence to show bias. The more offensive the remark, the stronger the claim may become. Even a frivolous or disingenuous claim of discrimination can get some legs if it is supported by an inappropriate, unprofessional or offensive comment.
What types of comments are these? Russian Tennis Federation President and IOC member Shami Tarpischev’s recent statement about Venus and Serena Williams is a classic example. Tarpischecv appeared on a Russian talk show this month with tennis player Elena Dementieva. When Dementieva was asked what it was like playing against the Williams sisters, Tarpischev interjected and called them the “Williams brothers.” If that was not bad enough, Tarpischev further stated that “it’s scary when you really look at them.”
As a result, the WTA fined Tarpischev $25,000 and suspended him from WTA Tour involvement for a year. Serena Williams applauded the WTA’s actions: “I think the WTA did a great job of taking [the] initiative and taking immediate action to his comments,” Williams said Sunday in Singapore ahead of her WTA Finals defense. “I thought they were very insensitive and extremely sexist as well as racist at the same time. I thought they were in a way bullying.” For a full summary of the story see http://espn.go.com/tennis/story/_/id/11726918/serena-williams-responds-russian-tennis-federation-official-comments-supports-suspension.
Tarpischev’s comment is exactly the type of comment that can encourage the filing of a discrimination claim. If the comments are made frequently they can create what is referred to as a hostile work environment. More specifically, under Title VII of the Civil Rights Act of 1964, sexist and racial “jokes,” or offensive or derogatory comments constitutes unlawful harassment if the conduct creates an intimidating, hostile, or offensive working environment, or interferes with the individual’s work performance. While Tarpischev claims his comments were taken out of context, harassment does not require an intent to offend. It is the impact the statements have that is important.
Given Tarpischev’s leadership position, one could argue that his comments are extremely impactful. Indeed, Russian WTA touring pro Maria Sharapova also condemned his comments and found them offensive: “I think they were very disrespectful and uncalled for, and I’m glad that many people have stood up, including the WTA. It was very inappropriate, especially in his position and all the responsibilities that he has not just in this sport, but being part of the Olympic committee.”
Arguably, Tarpischev’s comment alone is not sufficiently severe or pervasive to create a sexually or racially hostile environment under the law. This does not mean that the comment could not be used to support a claim or establish bias in a subsequent lawsuit. Furthermore, the WTA’s suspension of Tarpischev and the media attention surrounding the suspension prove that the consequences of making these types of comments can be damaging, even without litigation.
It is true that employers are often forced to defend against frivolous lawsuits. But too often company representatives say insensitive things in the workplace that upset employees and fuel lawsuits. Even otherwise frivolous claims can be strengthened by the existence of inappropriate comments. This is regretful, because it being unprofessional when it comes to an employee’s protected characteristic is stupid and avoidable.