Q I recently read a newspaper article concerning a lawsuit filed in federal court in Albuquerque by an Intel employee who is suing his employer for race-based harassment and intentional infliction of emotional distress. Coworkers secretly taped a “kick me” sign to his back and then kicked him as others laughed hysterically. What are we coming to? Can employees sue their employer for anything these days?
A The lawsuit has garnered quite a bit of attention in both the local and national press. The primary allegation involves a grade-school prank that many of us participated in as children. Indeed, at the very least, it was a juvenile prank. Few of us would think it would be the basis for a lawsuit in federal court, but it is.
Kick him when he’s down
Harvey Palacio is of Filipino descent. He was originally employed by Intel in Santa Clara, California, but he was transferred to Rio Rancho after the Santa Clara facility closed.
The incident leading to the lawsuit occurred when Palacio’s coworkers secretly taped a “kick me” sign to his back and kicked him several times. He says that once he suspected something was taped to his back, he went to a senior staffer to ask if that was the case. The staffer asked him to turn around. As he did, the staffer kicked Palacio three times in his buttocks.
Another employee kicked Palacio twice as he sought help to remove the sign. He claims that the prank made him feel demoralized and assaulted and that he began to cry during his drive home. Ultimately, criminal charges were filed against the senior staffer and the coworkers who kicked Palacio in front of other employees, resulting in convictions of petty misdemeanor battery and 16 hours of community service. The staffer and the other employees lost their jobs with Intel because of the prank.
Palacio says his coworkers subjected him to continued harassment, including repeatedly taking his clothing and putting trash in his work bag. In his complaint, he claims he reported the incidents to his supervisors but nothing was done.
At first blush, Palacio’s lawsuit may seem totally frivolous. However, his complaint includes allegations that, if proven, will establish race-based hostile environment discrimination and intentional infliction of emotional distress.
Don’t kick the can down the road
I can’t help but wonder how this incident became a lawsuit in federal court. Here are three keys to preventing a lawsuit in similar circumstances:
- Adopt and publish a clear and concise workplace conduct policy. Adopt a clear and concise policy that includes a strong stance against harassment, and disseminate it to all rank-and-file employees, supervisors, and managers. If you expect employees to conduct themselves appropriately at work, you must inform them of your expectations.
- Train managers, supervisors, and employees. This may be the most important step to prevent harassment. It’s essential that supervisors and managers are trained on the elements of harassment and how to deal with it. Supervisors and managers must acknowledge that their duties encompass not only ensuring that specific work tasks are performed but also that work is performed in an environment that is free from harassment. If managers don’t understand this, neither will employees. Rank-and-file employees should be given separate training on what is expected of them, and training should sensitize them to offensive conduct.
- React promptly and appropriately. Supervisors, employees, and managers are not the only ones who must be trained to recognize prohibited behavior. HR must promptly and thoroughly investigate complaints of prohibited conduct and respond in a timely manner.
The lesson from Palacio’s lawsuit is that in today’s workplace, employers must recognize and prevent hostile work environments based on protected status. HR, managers, and supervisors need to be vigilant in ensuring that an environment that is reasonably offensive to members of a protected class does not exist in the workplace. Frontline supervisors are the first defense to preventing an offensive atmosphere. It is essential that prompt and appropriate action be taken to address workplace harassment.
Excerpted from New Mexico Employment Law Letter and written by attorneys at Tinnin Law Firm, A Professional Corporation. NEW MEXICO EMPLOYMENT LAW LETTER is published to provide information of general interest and not to provide legal advice regarding any specific situation. Questions and inquiries directed to specific applications of the information contained in this article should be addressed to an attorney. Contact the attorneys at Tinnin Law Firm.