As racial injustice continues to take place across the globe, particularly in the U.S., many fashion brands have scrambled to publicly express their commitment to equality and anti-discrimination. While posting solidarity-centric statements on social media and donating to Black foundations is proving a tactic of choice for no shortage of brands, in at least some instances, these messages are allegedly coming in conflict with the reality of working conditions for employees of color, prompting questions about how exactly brands should respond to claims of discrimination in the workplace.
Employment regulators, such as the Equal Employment Opportunity Commission (“EEOC”), are already faced with a sizable number of racial discrimination-related complaints. For instance, more than 1 million employment discrimination complaints were filed with the EEOC between 2010 and 2019, and over a quarter of them came from black employees alleging discrimination on the basis of race. Now, in the wake of recent race-based violence, such as the death of George Floyd and the rise in protests in furtherance of causes like Black Lives Matter, experts expect there to be an uptick in the number of racial discrimination complaints being raised in the workplace.
Some of the complaints may be grievances concerning specific discriminatory acts raised by current or former employees or job applicants that can readily be investigated and addressed. However, others will likely center on the culture of a workplace more generally, as has been the case for claims made against a number of big-name companies, such as L’Oreal, Zimmermann, The Wing, Reformation, and Krewe, among others. Still yet, these claims may come in the form of a formal filing in accordance with workplace procedure, on the one hand, or on the other, they may come by way of members of the public on an external social media platform or may even be anonymous.
Employers must find ways to address such a broad spectrum of complaints and take appropriate action where needed. Tempting as it may be to push anonymous or vague complaints aside, there are risks in not engaging with them. If employers are seen failing to take complaints seriously, however imprecise or arduous they may appear to be, there is a chance that this could lead to formal discrimination claims being made, and ultimately, an employment tribunal could draw adverse inferences from such a failure to act.
The following provides a brief look at how employers can deal with different types of complaints …
What should employers consider when faced with a generic complaint about race discrimination in the workplace?
Where issues are raised about a company’s cultures and practices that are not specific, there are still steps that employers can take to investigate them. The first step would be to explore the allegations with the complainant in further detail (see below for when they wish to remain anonymous). If employers can extract more specific information about the complaint, they will be able to investigate it more fully.
If the complainant is unwilling to cooperate or the employer thinks that it would be inappropriate to contact them – for instance, if they are a member of the public on a social media platform – a more general cultural investigation is recommended to identify any truths behind the allegations. Employers could appoint an investigator to speak to a small group of people about their experience working at the company and follow up on any specific issues that come to light. Group members could be asked to volunteer, chosen at random or individually selected to represent a cross-section of the company.
The investigator could be someone internal who is seen as neutral – for example, someone from an unconnected department or group company. Alternatively, an external investigator might be engaged if no one internal can be identified as sufficiently neutral. A survey or an anonymous phoneline could also be used as an initial information-gathering tool.
If the complaint relates to issues that are easily measurable (e.g., levels of racial diversity in the workplace or at management level), employers may be able to investigate without receiving any specific allegations. Reviewing the company’s recruitment and diversity policies and practices to understand the level of racial diversity within the company would be a good start.
What should employers consider when faced with a complaint that is too vague to be investigated?
Employers should make an initial consideration of whether there are at least some elements of a complaint that can be meaningfully investigated. However, if the complaint is simply too vague, proactive action can still be taken to address the potential allegations. This could involve a statement from the leadership team acknowledging the issue, encouraging people to speak up and offering avenues for them to do so – for example, an anonymous phoneline, a cultural survey or an externally appointed investigator. If issues come to light as a result, they can be investigated.
Staff must be suitably reassured that it is safe for them to use this process without repercussions. Offering anonymity to people who participate may be necessary, although this can make it more difficult to take action.
A cultural survey, if used, could ask people for their views and to share examples of anything that they are unhappy about. If concerns arise, employees could then be encouraged to discuss them in more detail with an appointed investigator. Using a platform for the survey that enables employers to respond to employees on an anonymous basis could be useful. Still yet, training sessions can be delivered to organizations generally and to specific individuals whose names arise in allegations. These sessions are an invaluable way to ensure that members of staff are proactively encouraged to spot and call out racism.
What should employers consider when faced with a complaint that they do not think is true?
Even where there is a question mark over the veracity of a complaint, employers should still consider the complaint – even if simply to establish and record their conclusion that it is baseless (e.g., allegations being levelled at a team which does not exist).
What should employers consider when faced with an anonymous complaint?
Employers may understandably be cautious about engaging with anonymous complainants, especially where the nature of how the complaint is raised provides no clue as to where it has come from. For instance, an anonymous letter sent to the managing director of a company is likely to be more suspicious than a message on an internal anonymous hotline.
This does not mean that the complaint should not be taken seriously and potentially investigated. But where employers are unsure whether the complainant is external, they should not share details about any investigation into it or any findings unless the complainant reveals their identity.
Employers may be able to contact the individual despite their anonymity (e.g., where an email has been received which does not identify the sender). The sender may then be willing to speak, if the employer can enable them to do so on an anonymous basis. In this situation, employers will almost certainly need to identify a suitably impartial person to run the investigation into the allegations. This could be someone in another group company or an external investigator. Ideally, employers should assure a complainant that they will not be named to the company (if they do not want to be) and that retaliation will not be tolerated.
If the individual is unwilling to provide further information, it would still be advisable to take steps to try to address the generic allegations at a more general level, as set out above.
Karen Baxter is the head of Lewis Silkin’s Investigations and Regulatory group. Emma Langhorn is an associate in Lewis Silkin’s Employment, Immigration & Reward division. (Edits/additions courtesy of TFL)