Dive Brief:

• The U.S. Equal Employment Opportunity Commission has filed a lawsuit against the Holtsville, New York, On the Border Mexican Grill and Cantina, alleging that a black chef at the Tex-Mex chain was subjected to frequent verbal harassment by co-workers based on his race (EEOC v. On the Border Acquisitions, No. 1:18-cv-05122 (E.D.N.Y., Sept. 12, 2018)).
• The EEOC said the harassment involved the "regular and open use of racial slurs" by co-workers, and that management failed to stop the abuse or to discipline the harassers.
• The lawsuit alleges Title VII violations and seeks compensatory and punitive damages and injunctive relief.

Dive Insight:

Harassment generally becomes actionable when an employer knew or should have known it was going on and failed to act. That's why experts so frequently say that manager training is an important aspect of preventing discrimination and harassment claims. 

Employers continue to say that addressing harassment and discrimination is a top priority, but efforts can't end with a one-time training. Compliance training must be ongoing and ingrained in company culture — and it must resonate with employees. Part of that training can include ways to reduce the impact of bias at work. And while some say that bias can never be truly erased, workers can be taught ways to ameliorate its impact, taking time to listen and thinking before acting.

HR should have a robust harassment reporting procedure, and must take all complaints seriously. Doing so can prevent retaliation claims, even if a complaint is ultimately deemed meritless. As part of this effort, HR professionals need to work to be approachable, ensuring that individuals feel comfortable raising their concerns, Jonathan Segal, a partner at Duane Morris, has advised. Segal recommended that responses to such concerns be prepared in advance, suggesting that both HR and front-line managers be ready to say, for example, "Thank you for raising your concerns with me. I want you to know we take them seriously." 

Finally, HR also must ensure that non-retaliation is a reality, Segal said; otherwise, the complaint procedure won’t be used. And if employees are afraid to use the procedure, it can't help the business avoid liability, even if an employee never reported harassment: a federal appeals court recently sent such a case to trial, saying a reasonable jury could find that the plaintiff was prevented from reporting harassing behavior by her "legitimate fear of the possible consequences of doing so."