A HATE-RELATED ANSWER
A word is not a crystal, transparent and unchanged, it is the skin of
a living thought and may vary greatly in color and content
according to the circumstances and time in which it is used.
Justice Oliver Wendell Holmes
Introduction
As any good Human Resources manager knows, responding to bad behavior in the
workplace is both an art and a science, and there is a wide spectrum of appropriate corrective or
preventative action. But when faced with truly arresting symbols and words - racial slurs and
other aggressively offensive conduct - what is appropriate responsive action?
When the language and images are so egregious, is it enough to progressively discipline
an employee and hope for rehabilitation? How does a diverse, international company approach
such isolating, anti-social behavior? How does a company encourage a culture where employees
feel safe and valued?
These are questions that American Airlines faced roughly a decade ago. And, through a
process that was both complex, yet simple – easy, yet terribly challenging - American found its
answers to these questions and took a new approach to this type of egregious misconduct: When
an employee uses slurs or images, he or she will be terminated without regard to length of
service or work history.
This sounds simple enough; who wouldn’t terminate an employee for such conduct? But,
the complexity is of course in the details. The balance of this Paper describes how American
enhanced its approach to this category of misconduct, which we call “hate-related behavior,” the
challenges we faced, and the results we achieved. We hope that other employers – particularly
those who may be embarking on a similar journey - find value in our story.
Our History
American Airlines and American Eagle serve almost 250 cities all over the globe with
more than 3,600 flights per day. We know that at its most basic, our mission is bringing people
together, people from many different communities and cultures. We know we will be successful
only if the experience we deliver, and the work environment we create for our 80,000 employees,
customers and partners is welcoming and respectful for everyone.
As a company that bears the name “American,” much is expected of us, and we hold
ourselves to a high standard.” From hiring the industry’s first African-American flight attendant
in 1963, to the first female pilot in 1973, to the creation of our supplier diversity program in the
‘80s and our diverse segment marketing teams in the ‘90s, we have a long history of leadership
in workplace diversity.
Like any large employer, though, we employ a cross section of our society. The
differences among our employees that create great value can sometimes manifest themselves in
harshly negative ways. As a result, we have long had policies and rules that prohibit
discriminatory and harassing behavior.
In the late 1990s, though, we experienced a range of work environment problems in some
of our locations. We had a small number of employees who used hateful slurs, or told racist
jokes, or drew graphic sexual graffiti on lockers and in our restroom stalls. These incidents –
isolated though they were - threatened the workplace culture that we work so hard to build and
maintain and that we knew was vital to our future success. And, they were happening even
though we had the same “zero-tolerance” policy that most good employers had, trained our
employees, conducted thorough investigations, and took disciplinary action when we could find
the perpetrator. But, isolated incidents persisted with the offensive conduct remaining, and the
company wanted to make further progress in this area. We were attracting the attention of the
Equal Employment Opportunity Commission and some prominent plaintiff-side employment
lawyers. As a result, we were defending a dozen different lawsuits across the country involving
allegations of egregious workplace harassment.
Our leaders knew we needed to act. We needed to eradicate these pockets of misconduct.
After thorough and complex analysis, we enhanced our approach to resolve truly egregious
incidents: Those incidents we deemed “hate-related” conduct.
Our Building Blocks for an Enhanced Approach
In order to understand American’s transition to this enhanced approach toward haterelated behavior, it is important to understand the building blocks that made this approach
realistic. We were fortunate to have:
•
In-house Human Resources professionals. We had an experienced team of Human
Resources professionals who assisted with all personnel issues in the operations. These
individuals are assigned by geography and workgroup, so that although our staffing is
lean, subject matter experts are available to every manager in the system.
•
Specialized investigators. We also had HR professionals who specialize in complex and
high-profile investigations. The investigators were uniquely able to assist with
investigations into potentially hate-related conduct.
•
In-house counsel. Our Legal Department includes experienced attorneys who practice
exclusively in employment law. Counsel was able to assess all aspects of workplace
behavior through the lens of our obligations under various civil rights laws.
•
Diverse employee resource groups. We had a richly diverse workforce and supported a
wide variety of employee resource groups. Although the groups are affinity groups,
rather than elements of our Human Resources department, they provided valuable
feedback with regard to how certain slurs or symbols were perceived in their
communities.
•
Sophisticated management at all levels. Our senior leadership fully supported exploring
an enhanced approach to hate-related behavior. Moreover, lower levels of management
remained committed to implementing our work environment policies in day-to-day,
front-line decisions.
•
Training and communication vehicles. We had a suite of training and communication
vehicles available. Training resources included instructor-led training; computer-based
training; and on-the-job training. Communication vehicles included both real-time
electronic communiqués via a secure website, as well as more traditional vehicles such as
management gatherings and staff meetings.
Our Enhanced Approach
When we realized that an enhanced approach was needed, we found a path that
efficiently built on existing policies. We reinforced – and enhanced – the existing zero tolerance
approach to require immediate termination for hate-related conduct. This section describes how
that enhancement was developed, and what our policy is today.
Our Work Environment Policy and Amended Work Rule
We began with the basics: our Work Environment Policy. This is our version of the
common employer practice of identifying standards of professional and acceptable behavior.
Our Work Environment Policy always had prohibited harassment and violence in the workplace,
and this certainly included the more egregious examples that would include hate-related
behavior.
But, we wanted to enhance our policy to make two concepts crystal clear. First, haterelated behavior would never under any circumstances be tolerated. Second, it would lead to
immediate termination, regardless of history or length of service. In order to execute that
concept, we amended our Work Environment Policy. We also incorporated our Work
Environment Policy into a specific rule of conduct, Rule 32.
The relevant portion of our Workplace Environment Policy states:
We are committed to fostering a safe work environment that is second to none –
one that celebrates diversity, offers equal opportunities and where all employees
feel secure, involved, valued, and respected. We do not tolerate discrimination,
unlawful harassment, hate-related behavior, threats of workplace violence, or
other inappropriate behavior. Respecting one another and valuing our differences
is a core value of our culture. Each of us must make a personal commitment to
these principles every day - whenever we interact with our fellow employees and
our customers.
Our enhanced version of Rule 32 states:
Behavior that violates the Company's Work Environment Policy, even if intended
as a joke, is absolutely prohibited and will be grounds for severe corrective action,
up to and including termination of employment. This includes, but is not limited
to, threatening, intimidating, interfering with, or abusive, demeaning, or violent
behavior toward, another employee, contractor, customer, or vendor, while either
on or off duty. Behavior that is also hate-related will result in immediate
termination of employment, regardless of length of service and prior employment
record.
Identifying “Hate-Related Behavior”
As we conceptualized our enhanced work environment policy/Rule 32, we saw the
immediate order of business. We needed to identify what “hate-related behavior” meant. We
began with a definition:
Hate-Related Behavior
Hate-related behavior is any action or statement that suggests hatred for or
hostility toward a person or group because of their race, sex, sexual orientation,
religion, or other protected characteristic. This includes, but is in no way limited
to, bigoted slurs, drawings, and symbols such as a hangman's noose, a swastika,
or graffiti.
Refer to the Examples of Inappropriate Words for a list of words and phrases
which, when used, may lead to immediate termination of employment. Use
appropriate discretion in viewing and printing the materials.
Although the definition appears straightforward, three important elements hold more nuance than
initially meets the eye.
First, we used the term “hate-related behavior” instead of the more obvious “hate
speech,” or “hate behavior.” And, we used “suggests,” in reference to the meaning of a word or
an action, instead of the more straightforward “expresses” or “conveys.” These were conscious
choices – made, frankly, after countless discussions and debates. Why did we make these
particular choices?
It has to do with the concept of “intent.” As we saw it, it is not properly the role of an
employer to regulate what is in its employees’ heads and in their hearts. If an employee wants to
carry racist1 feelings inside all of his or her life, that is pitiful, but not our business. What is our
business, though – according to our policies and as a matter of law – is what he or she says and
does at work.2 Far more practically, we did not want employees who may have violated Rule 32
to have available to them as a defense a claim that “I didn’t mean anything by it” and “it was just
a joke.”
So, under our enhanced Rule, a subjective, hateful frame of mind is not an element of
“hate-related behavior.” We just do not consider at all what the employee claims to have meant
or intended.3 If an employee’s words or conduct “suggest” – in the smallest of ways – a possible
connection (as distinguished from an “actual” one) that is “related” – again, in the smallest of
ways – to hatred or hostility because of a protected characteristic, then that behavior is “haterelated” within the meaning of our Rule 32. We discuss additional nuances surrounding “intent”
later in this Paper, in the Section on Our Expected Challenges.
Second, we chose to use the indefinite article “a” to modify the non-specific “person or
group” referred to in the definition. We did this to confirm that an employee’s conduct need not
be directed toward or even heard or observed by a specific target or victim to be “hate-related.”
As we think of it, the workplace is the true victim of hate-related behavior. Everyone in our
company is demeaned by it.
A corollary to this idea is that hate-related conduct is not excused if witnesses (and, as
often happens, the actual targets or victims of a slur) state that they were not offended by the
conduct. We believe that certain words and conduct are by their very nature (regardless of any
offended victim) so corrosively destructive of an inclusive work environment that they cannot be
tolerated. More practically, we also know that peer pressure about being a “rat” is a reality in the
1
We would like to point out a scrivener’s term used in this paper. Our definition of hate-related behavior includes
slurs or icons based on race, ethnicity, religion and sexual orientation, among other characteristics. Because of the
cumbersome nature of that description, however, we will use the term “race” or “racial” as shorthand in the Paper.
We do not mean to limit application solely to racial slurs, or racial icons. Rather, it is an author’s device to
collectively refer to all categories of protected characteristics. 2
To the extent that off-duty conduct has a nexus to the workplace, we also would examine that behavior, as well.
3
To do otherwise would create an exception that swallows the Rule, for to admit having intended to express hatred
would be to commit career suicide.
workplace and we do not want that pressure to succeed in letting employees engaged in this
misconduct off the hook.4
Third, the definition refers to a list of examples. Initially, we did not publish such a list
because we knew it could never be comprehensive and we did not want to convey to employees
that they would be safe if all they did was steer clear of the published list.5 We came to realize,
though, that employees might better understand the Rule if they had concrete examples of the
types of words, phrases, symbols, and objects that are so offensive as to justify mandatory
termination. So, we created a list of illustrative examples. It continues to exist in Jetnet, our
secure website that we use to communicate with employees. (Note that in order to open the list
on our website, a user must acknowledge a warning that the document contains offensive words,
and the user should take care when printing the list or leaving the list onscreen.) A copy of our
list of examples is attached as an Appendix.
The Consequences
The heart of our zero tolerance policy, of course, was the consequence of engaging in
hate-related behavior: immediate termination, regardless of length of service and prior
employment record. Our position was always one of zero tolerance for slurs before we enhanced
the Rule, but we often manifested that zero tolerance as other employers did – by addressing
every incident of such misconduct. That could mean, however, addressing the incident with
corrective action short of termination.6 Under our enhanced approach, we would address every
incident of hate-related behavior with termination.
Our Protocol
Once we identified our building blocks and drafted our policies, we realized that we needed a
protocol to ensure that we handled these matters carefully and consistently. Our process is
described – sequentially, from beginning to end – immediately below. Moreover, a copy of our
written protocol is attached as an Appendix.
4
We have had several times the unfortunate experience of having an employee report a co-worker’s hate-related
conduct, only to testify later in arbitration to the effect that “it didn’t really bother me.”
5
We also naively believed that the words and conduct covered by the Rule were self-evident and not susceptible of
serious debate. Our very first case – in which an employee called another employee “Buckwheat” – disabused us of
that notion and started us thinking about a list. More on the surprising variety of hate-related conduct later.
6
Right or wrong, we came to believe that the only way to further reduce hate-related behavior was to make the
workplace environment policy more clear and the consequences of violating it more severe. “Zero tolerance” did
not seem to convey that the company would terminate an employee for hate-related behavior.
•
Monitored Complaint Process. We have multiple ways in which employees may report
workplace concerns. These include direct reports to supervisors; reports to a centralized
Human Resources group; and an ethics hotline, which also allows for anonymous reports.
Complaints are monitored to ensure a fair and thorough review, with some form of
resolution.
•
Investigation. Every complaint of potentially hate-related misconduct is investigated. As
noted above in the section on Building Blocks, we have a group of individuals who
specialize in more sophisticated, high-profile, investigations. These investigators
routinely perform – or at least assist with – investigations with potentially hate-related
allegations. Finally, it is worth noting that much of our workforce is unionized, and our
collective bargaining agreements include specific procedures for investigations.
Although operational management must always be cognizant of these due process
elements, it is particularly important for these safeguards to be met when the potential
result is immediate termination.
•
A review process. If misconduct is anywhere close to being potentially hate-related,
subject-matter experts in the HR and Legal departments review that matter with the
operational manager. The review process ensures a thorough vetting; an objective
analysis, and a consistent approach in determining whether conduct is hate-related.
•
Immediate termination for hate-related conduct. Should the investigation and review
process confirm that an employee engaged in hate-related conduct, the sole
recommendation is “termination.” In the small number of cases in which individual
managers disagree, they are required to consult with their own manager. (As situations
are elevated up the chain of command, disagreements tend to be resolved.)
•
Institutional history. As matters arise and are resolved, we memorialize the decisions.
This gives us a body of institutional history that guides us in later matters. We can
review prior cases in which a specific term was used, and whether it was deemed haterelated. Should the same term come up again, the prior case guides our present analysis.
•
Trained advocates and subject matter experts to handle termination grievances. The final
element in the life span of a live case is a potential arbitration. The advocates
responsible for defending our actions in these arbitrations are very familiar with our
approach to hate-related behavior. Moreover, subject-matter experts are available to
testify with regard to any aspect of the policies. We will address our arbitration success
in more detail in a later section of this paper on Our Results.
Our Expected Challenges
As most Human Resources professional knows, change in the workplace – even positive,
necessary change in the workplace – presents challenges. We anticipated four significant
challenges to our enhanced approach to hate-related conduct.
Implementing Change
The first challenge, of course, was implementing an enhanced policy with more severe
consequences. We expected that the notion of immediate termination would raise some concerns
for employees, unions, and even some in management (such as those managers who would bear
the brunt of the backlash from front-line employees and unions). We took the following
measures to manage that change:
•
Communication from senior leadership. The enhancement was announced by executive
leadership. Our CEO sent a system-wide announcement supporting the policy, and at the
same time, senior leadership of HR published a series of questions and answers with
additional detail. Immediately thereafter, others in HR leadership conducted conference
calls across the system. In addition, we published a series of articles about the
enhancement via our daily update service (known internally as “Jetwire”), which is
available to every one of our employees. Ultimately, operations management
incorporated the message into staff meetings with their own direct reports.
•
Incorporating front-line employee feedback. Shortly after the initial enhancement, we
solicited employee feedback. We arranged for personal meetings with a mix of
workgroups: Management and non-management, as well as ground employees and flight
crew. The meetings helped us to identify and address concerns.
•
Longer-term Training. We asked these groups what they would like to see in additional
training. That was the genesis of a comprehensive training module about work
environment issues, which we call Value of Respect. This training emphasizes the
importance of creating and maintaining an inclusive and respectful workplace. Presently
Value of Respect is required for all employees, and is available via a computer-based
system. Our data also reflects that when we refresh Value of Respect with our
employees, complaints of hate-related behavior tend to drop.
The Impact of Arbitrations in a Unionized Environment
A second, albeit related, challenge was how arbitrations would affect our enhanced Rule
32. The majority of our employees are represented by unions and their collective bargaining
agreements contain dispute resolution processes. These dispute resolution processes may
culminate in arbitration before a neutral party.7
7
Our independent workgroups are not bound by collective bargaining agreements. Nonetheless, they have similar
opportunities to appeal terminations, with a hearing before a neutral party. We knew that arbitrators view termination as the “capital punishment” of the workplace
and we expected them to be wary of our Rule. We worried that the first inclination of many
would be to disregard our Rule and reinstate terminated employees. Nonetheless, we believed
that we could not let fear of losing in arbitration dictate our approach to hate-related behavior.
We discuss our success in defending these terminations later in this Paper under the section, Our
Results.
Hate-related Behavior and the Problem of “Intent”
Our third challenge was the issue of “intent.” Of course, in routine workplace
misconduct, a manager may base decisions – at least in part – on the employee’s intent. A
fundamental principle of our hate-related policy is to ignore intent, and we understood that it
would be a challenge for which we would need to prepare.
As we have already described, we have strongly taken the position that our definition of
“hate-related” does not consider intent. The alternative appears almost unmanageable.
If one starts from the premise that a member of a particular race cannot hate his own race, it is an
easy jump to the conclusion that he therefore cannot possibly have engaged in hate-related
behavior – if the definition of “hate-related” has an intent element. Once that jump is made,
though, we would be forced to treat the slur-users in our hypothetical differently despite the fact
that they did precisely the same thing.
We believe that to impose a subjective intent standard on “hate-related” behavior would
effectively give members of one particular race the right to use at work a list of words and
actions that members of every other race cannot. These privileges would divide the workplace
(each group would have its own list of protected words, after all), blocking and mocking our
stated goal of a workplace in which all employees are respected and all have an equal
opportunity to succeed.8 For this reason, as we define “hate-related” behavior, both employees
in our hypothetical will be treated equally – both will be terminated.9
8
We also think we correctly anticipated possible exposure to liability in court on this issue. Just a few weeks ago,
as we write, a Federal District Court ordered a case to trial in which a Philadelphia television station had fired a
news anchor, who is white, for using the n-word at work. The reporter alleged that the station had not fired AfricanAmerican employees for using the same word. In denying summary judgment to the station, the presiding Judge
wrote: “When viewed in its historical context, one can see how people in general, and African Americans in
particular, might react differently when a white person uses the word than if an African American uses it.
Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based
distinctions between employees." 9
Prefer a real-world example? In the Philadelphia television station case, the fired white news anchor alleged that
an African-American co-worker had referred to the subject of a news story as “one dumb nigger.” If our
investigation substantiated that statement, in the same context, we would fire that co-worker. While we do not focus on “intent,” we do examine the context in which alleged haterelated behavior took place. One way to describe our analytical rule of thumb is to say that any
use of a slur is hate-related, unless the context in which it is used clearly shows on its face (that
is, without consideration of the speaker’s explanation) that it was not. So, we recognize, for
example, that an employee who reports a co-worker for calling him a racial slur, using the racial
slur in his report, does not deserve discipline. Likewise, we do not seek to discipline an
employee who teaches another why a certain word is offensive to him, or a Human Resources
representative who asks a witness in arbitration if he used a specific word.10
Even eight years into this process, the concept of “intent” surfaces routinely and remains
controversial. We occasionally have a manager who hesitates to consider terminating an
employee who used a slur in a joke because he does not believe the employee meant anything by
it. Or, an arbitrator may look at a grievant’s intent as the lynchpin for her decision. Nonetheless,
this remains a central tenet of our approach and we continue to work to educate our employees,
our management, our unions and our arbitrators about it.
More on the “Same-Race” Case
Fourth and finally, we identified two concepts closely related to intent: the use of slurs as
terms of affection (possibly the “intent” of the first employee in our hypothetical above); and the
use of slurs by members of an identifiable group who claim to be “reclaiming” the slur as a
political act.
We recognized that there exists in society today a vigorous and often painful debate about
the meaning, value, and “ownership” of certain words. Some hip-hop artists, for example, might
argue that certain words or phrases are culturally and politically valuable form of expression in
the African-American community. Most recently, in another example we may all remember,
traditional media and the blogosphere overflowed with debate about radio talk-show host Dr.
Laura Schlessinger’s repeated use with a caller (or misuse, depending on the perspective) of “the
n-word.”
We do not question the validity of anyone’s position in these debates. (In fact, the HR
and Legal professionals who work on our Rule 32 cases all have different thoughts on these
issues and acknowledge those personal differences). Nor do we pretend to know which outcome
is “correct.” However, we do know that we do not want our workplaces to be a focal point in
these debates. The answers to the difficult questions raised in these debates must be found, if
they ever are to be found, in the free play of ideas in our society. They will not be found by our
employees on our aircraft, in our break rooms, or in our grievance arbitrations.
10
These and similar situations may well be protected activity under applicable discrimination laws, and could not be
a basis for discipline.
Our Unexpected Challenges
In addition to the expected obstacles noted above, we encountered unexpected
challenges, as well. Two challenges in particular stand out, and companies examining a similar
approach may learn from our history with these challenges.
Dolphins in the Nets
The first challenge involved cases that we refer to as the “dolphins in the nets.”11 As
we’ve discussed, the key feature of our approach is the “bright line” test. If a word or symbol is
deemed hate-related, use of it requires termination. But, as with any “bright line” test, certain
cases have bordered on the absurd and these cases are the dolphins in the nets. A few examples
illustrate that principle.
•
Example 1: The news media widely disseminated a story about vandals defacing a
family’s garage by spray-painting racial slurs. Subsequent stories reported reactions to
the vandalism, including town hall meetings and other public responses. Against this
backdrop, an African-American employee described the events to her African-American
coworker in a break room at work. She told her friend, “We wouldn’t be welcome in
that neighborhood,” and described the graffiti using the precise slur. Her use of the slur
in the workplace was reported.
•
Example 2: An employee parked his car at the company’s parking lot. The employee
had affixed a magnetized bumper sticker to his car, and the image on the magnet was a
hangman’s noose. But, the word “Bush” (who was then in office) was printed on the
noose, as well.
The dolphin in the net phenomenon has reinforced for us the idea that context does matter.
Based on the unmistakable context in which the slur and the noose were used, neither of the
examples above was deemed hate-related.
The Evolving Nature of Hate-Related Misconduct
The second unforeseen challenge was the seemingly infinite variety of hate-related
misconduct. As we said earlier, we initially thought there would be little controversy over what
is and is not a slur. But, the company has experienced a range in the scope and novelty of haterelated behavior cases.
11
The phrase is of course a reference to the plight of dolphins inadvertently caught in fishing nets. We urge readers
to approach our phrase with the right frame of mind. We take seriously the termination of any employee’s job. Some of the more novel examples include slurs in foreign languages and those that have
regional meaning. For example, in Canada and in England, using the term “Paki” to refer to
Pakistanis is offensive and hate-related, but it is not well-known in the United States. These and
many others required thorough research, analysis, and education.
Our Results
American is proud to report positive results that we attribute to our enhanced approach to
hate-related misconduct. We have both anecdotal evidence and traditional metrics, upon which
to base our analysis. We have grouped our results into three categories of interest.
In the Workplace
American has seen change in our workplace, in two interesting ways. First, complaints
of hate-related behavior have significantly decreased since implementation of the enhanced
approach. And, the gap between complaints of hate-related behavior and confirmed hate-related
behavior has narrowed. In other words, we believe that our workforce understands more
precisely what fits the definition of hate-related behavior, and are bringing forward legitimate
concerns. Our metrics are:
•
Claims of hate-related behavior immediately dropped by roughly 40% within one year of
implementing our new approach.
•
Within four years of implementation, claims of hate-related behavior had dropped to less
than half of the original levels.
•
By year six, claims of hate-related behavior dropped to roughly one-third of the original
levels.
•
In 2010, eight years after implementation, we had our lowest number of complaints to
date, which would be roughly 20% of original levels.
•
For the last several years, terminations for confirmed hate-related conduct have remained
relatively static, which appears to indicate that when we do receive concerns, our
investigations and actions are sharpened and effective.
Second, work environment complaints – of any kind, not simply hate-related conduct have decreased. This suggests that an enhanced approach, coupled with our employee training
and education, has moved the dial on all types of work environment concerns. Our metrics are:
Work
2002
2003
2004
2005
2006
2007
2008
2009
2010
19.3
16.0
15.2
12.9
11.1
9.6
10.0
8.1
7.8
Environment
Complaints
per 1000
Employees
In Arbitrations
American also has seen dramatically positive results with regard to arbitrations. In the
eight years since we transitioned to our enhanced approach, we have compiled the following
numbers:
250 Hate related termina1ons: 210 200 Termina1ons Progressed to Arbitra1on: 71 Company Wins in Arbitra1on: 34 150 Company Losses in Arbitra1on: 10 100 Split Decisions (Reinstatement w/
Discipline and w/o Back Pay): 24 Pending: 3 50 0 Arbitra,on Metrics These arbitration numbers are, perhaps, one of our most surprising achievements.
Nonetheless, certain aspects of these arbitration decisions remain problematic and the process
can be difficult to navigate and predict. For example, although we understand an arbitrator’s
concerns about Rule 32, we continue to see arbitrators overturn terminations. These common
rationales – none of which should make a difference under our approach - include:
•
Clean record. Although the grievant engaged in hate-related conduct, s/he had no prior
discipline.
•
Stray comment. The hate-related term was a single statement or isolated comment.
•
No victim. The grievant did not direct a remark to a specific person, or directed it to
someone other than the complainant.
•
Victim’s mercy. A victim testifies that termination is too severe and the grievant should
not lose the job; a victim accepts a grievant apology; a victim testifies that s/he harbors
no ill will toward the grievant; or a victim testifies that s/he was not offended by the
conduct.
•
No hateful intent. The grievant did not intend to disparage anyone – for example, when
using a slur about sexual orientation, s/he did not know anyone in the room was gay; or
an African-American uses the n-word to refer to himself or herself, or to chat with
African-American friends.
•
Remorse. The grievant was candid during the investigation and regrets the hate-related
behavior.
Similarly, we see arbitrators uphold terminations for these reasons:
•
Evidence that the grievant had a “hateful” intent. The grievant used slurs as part of a
verbal or physical fight. Or, the grievant used slurs with profanity, or other evidence of
tension.
•
Multiple hate-related statements. The grievant used multiple slurs in a single event,
uttered slurs against multiple people, or routinely used slurs.
•
Poor disciplinary record. Prior discipline for work environment issues is particularly
noteworthy.
•
Compelling victim testimony. Our arbitrations are full evidentiary hearings with live
witness testimony. Not surprisingly, arbitrators may uphold terminations when victims
provide more powerful testimony.
We respect our bargaining relationships with our unions, and we respect the process of
binding arbitration. While our education campaign continues, we remain enthusiastic about our
success in arbitration, and look forward to continuing positive results.
In Government Investigations/Litigation
Finally, American believes that the impact of its enhanced approach to hate-related
behavior has positively affected its results in litigation and administrative charges. We have
received positive feedback from the Equal Employment Opportunity Commission (and its state
equivalents) with regard to our approach. Moreover, we presently have no pending litigation that
involves allegations of hate-related behavior.
Conclusion
In an ideal world, this Paper would not be necessary. In that world, society would have
progressed past the slurs and abusive icons that we have discussed. Employers would not need
to protect their workplaces against such coarse conduct because that conduct would not exist.
But, society is not there yet. And workplaces are microcosms of the world at large.
Accordingly, any employer must continue to monitor conduct within its workplace, and respond
to hate-related behavior.
Our approach may not work for all employers. We hope, however, that our story
provides insight to the employer community about one approach on the spectrum. We also trust
that our approach will continue to provide for American and our employees the positive results
that we have shared.
Appendices
Appendix 1: Company’s Rules of Conduct
Appendix 2: Company’s Work Environment Policy
Appendix 3: Examples of Hate-Related Conduct
Appendix 4: Communication Examples
Appendix 5: Company’s Standard Protocol to Review Hate-Related Behavior
Appendix 6: Additional Data