Human Resource Blog

Maine Race Discrimination vs. Free Speech

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I’m an employer concerned about free speech and racial discrimination in Maine. A number of employees have started using racial epithets and posting insulting graffiti in the work areas. Are these still considered a hostile work environment if no one complains about them?

Yes. Although a court might not hold you responsible for racial discrimination you are ignorant of, you clearly are aware of the racial epithets and insulting graffiti in your workplace. Therefore, you have an obligation to do something about it. The protection against a “hostile working environment” trumps free speech protections in cases like these.

A court in a recent case ruled that the employer either knew about or, more strikingly, should have known about, a hostile working environment regardless of the fact that nobody had complained. In this case, there was graffiti throughout the workplace insulting African-Americans, and in the workers’ break room there were racist pamphlets and articles. The finding was on behalf of 20 African-American workers at a steel company in Pennsylvania. The case cost the company $600,000.

Keep in mind that, because you have asked about this, you are already aware of the situation.

Some workers will put up with abuse and insults for a long time before they can no longer tolerate it and finally file a complaint. Legally, they are within their rights to find it offensive at any time, and they don’t have to complain right away.

Neither does an employee have to be a member of the group being insulted, in order to file a legitimate complaint. A black male, say, may find it offensive to see graffiti insulting females. A Caucasian worker may take offense at abusive remarks directed at African-American coworkers. The law takes these instances with equal seriousness. And you as an employer must proceed against such behavior the same as if the complainant were a member of the targeted group.

Title VII of the Civil Rights Act of 1964 is the relevant law, and the enforcing body is the Equal Employment Opportunity Commission, otherwise known as the EEOC.

A pattern of insulting or abusive behavior must be demonstrated to meet the test of “hostile working environment.” The employer must be aware of the racist, abusive, or otherwise hostile behavior.