AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law

    Time to double-check your social media policies.

    The National Labor Relations Board (NLRB) has released a 2018 advice memo from its Office of General Counsel regarding “whether various Employer [CVS Health] social media rules are unlawfully overbroad“ under the National Labor Relations Act (NLRA).

    The memo delivers mixed news for
    employers — the NLRB found that two of CVS’ social media policies did violate
    workers’ rights under the NLRA. But the rest of the company’s social media
    policies fall within the law.

    So, what rights did CVS violate in its social media policies?

    The two sections of CVS’ policy the Board identifies as unlawful prohibited activities protected under NLRA Section 7.

    The unlawful policies, it said, impinged on workers’ rights to “discuss with each other “wages, working conditions or employment disputes,” and to “engage in concerted activities for their mutual benefit.”

    Those rights were included in the NLRA to protect workers’ rights to organize and to publicize what they see as unfair, unsafe, or illegal work conditions.

    Who posted this?

    One of the things CVS got wrong, the board said, was trying to force employees to identify themselves by their real name any time they discussed anything about the company or its activities using social media.

    But, NLRB said, “requiring employees to self-identify in order to participate in collective action would impose a significant burden on Section 7 rights.”

    And the company’s restriction on undefined “employee information” on social media also broke the rules.

    “While the employer has a
    legitimate business interest in keeping customers’ and employees’ personal and
    medical information confidential,” the memo says, “it has no legitimate
    interest in preventing employees from sharing contact information or discussing
    wages, working conditions or employment disputes.”

    OK to ban uncivil, illegal posts

    The board found no problem with CVS
    saying employees can’t post material that’s “discriminatory, harassing,
    bullying, threatening, defamatory or unlawful or any content, images or photos
    that they don’t have the right to use.”

    The decisions, the Board said, are “consistent
    with the Board’s ‘duty to strike the proper balance between …  asserted business justifications and the
    invasion of employee rights … focusing on the perspective of employees.”

    What does the memo mean for your organization?

    For starters, you need to review your handbooks, Code of Conduct and other formal policy statements for any language that limits workers’ Section 7 rights and modify or get rid of it altogether.

    But you can’t stop there. Other federal, state and municipal laws and regulations specifically protect workers’ rights to discuss discrimination, harassment, retaliation and safety.

    And many states frown on employers trying to control workers’ (legal) off-duty activities.

    This is a good time to check your
    policies against those, as well.

    The post NLRB: Social media policy can’t require employees to use real names online appeared first on HR Morning.

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    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law, Latest News & Views, Uncategorized

    “I’m Not Returning to Google After Maternity Leave, and Here is Why.” That was the subject line of a post alleging pregnancy discrimination and retaliation that went up on an internal Google message board for new and expectant mothers.

    The unnamed Google worker alleges that her manager actively retaliated against her after she told HR about the manager’s comments disparaging pregnant women. Thousands of her co-workers have since read the memo and it has been published by VICE.

    Angry messages and public shaming

    The employee says that, despite assurances from HR that she would not face any retaliation from her supervisor for reporting the pregnancy discrimination allegations, her manager began sending angry messages, ignoring her in meetings and humiliating her in front of her peers.

    The abusive interactions, she says, impacted her health and caused her to be concerned about her unborn baby.

    Joining a new team did not resolve the situation, she says.

    And, she says in the memo, after joinng the new group she was given fewer responsibilities and told not to take on more managerial duties or attend some management events until she returned from maternity leave.

    In the end, she says, she reported that she was being discriminated against because she was pregnant and HR launched an investigation.

    HR’s findings? Poor communication and inadvertent exclusion from management gatherings due to administrative errors. It did not find that the employee’s manager discriminated against her.

    HR also told her, she says, that there was no evidence she was discouraged from taking early leave when she developed complications with her pregnancy.

    Damage control

    The employee did not indicate whether she plans to sue Google under The Pregnancy Discrimination Act. But, if her allegations about hostile messages and unfair reductions in her responsibilities are backed up by internal communications records, Google could face a damaging court battle or an expensive settlement.

    Google released a statement after the VICE story came out, saying, “We prohibit retaliation in the workplace and publicly share our very clear policy. To make sure that no complaint raised goes unheard at Google, we give employees multiple channels to report concerns, including anonymously, and investigate all allegations of retaliation.”

    Reminder for other employers

    Any company as large and high-profile as Alphabet Inc.’s Google is going to have its share of employee complaints and HR missteps.

    But the Mountain View, CA-based tech behemoth has faced both complaints from many unhappy workers and an unusually public discussion of its response to those complaints.

    Google workers have sent all-hands emails on issues ranging from sexual harassment and retaliation, to racial and gender-based discrimination, to Pentagon contracts. And a steady stream of those internal messages has leaked out onto social media and gone viral.

    Regardless of how this allegation of pregnancy discrimination and retaliation plays out, it is yet another blow to Google’s reputation as an employer.

    And it’s another useful reminder that all employers need to be vigilant in training employees on compliance obligations and identifying, addressing, and rectifying instances of pregnancy and other discrimination at every level of their workforce.

    The post Google HR faces another PR disaster appeared first on HR Morning.

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    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law, Uncategorized

    California law now prohibits employers from implementing dress and appearance policies that discriminate against employees or job applicants based on how they wear their hair.

    Governor Gavin Newsom on July 3 signed into law the CROWN Act (Creating a Respectful and Open Workplace for Natural Hair).

    Grooming standards as proxy for race and source of bias

    The law, which is now part of California’s Fair Employment and Housing Act prohibits discrimination in employment and education based on hairstyles that feature “traits historically associated with one’s race, such as hair texture and protective hairstyles.”

    All employers with operations in the state should revisit and revise any personal grooming policies that might run afoul of the law.

    And employers should quickly train all personnel involved in interviewing and hiring, to prevent bias against candidates who choose to wear “hairstyles [such] as braids, locks, and twists.”

    While not restricted to hairstyles most often associated with African Americans, the Act states that hairstyles remain a proxy for race and a source of hiring bias, “especially for Black individuals.”

    Discriminatory dress codes

    The Act also refers to discriminatory dress code policies that prohibit or discourage religious dress.

    It defines religious dress as including “religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed.”

    The CROWN Act has also been introduced in New York and New Jersey, with other states and municipalities likely to follow.

    Indeed, even before the state legislature acts, the New York City Commission on Human Rights in February issued its Legal Enforcement Guidance on Race Discrimination on the Basis of Hair.

    Those regulations follow the Crown Act’s language and focus on “eliminate[ing] dress code and grooming policies that prohibit natural hair, which are likely to deter Black applicants and burden or punish Black employees. “

    The post California ban on hairstyle discrimination goes into force appeared first on HRMorning.

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    AUTHOR: // CATEGORY: Discrimination & Harassment, Uncategorized

    American workers appear more ready and willing than at any other time to embrace their LGBTQ colleagues and co-workers, according to a study by the PR firm Bospar.

    The survey of 2,000 adults just released by the San Francisco-based firm for the 50th anniversary of Pride Month found that 60% of Americans have no preference about with whom they work. Last year Bospar reported that percentage at 55%. 

    What’s more, an overwhelming majority of Americans (83%) believe that LGBTQ equality can and will be achieved in the workplace.

    When asked how, the top reasons cited included: more LGBTQ colleagues in the workplace; more workplace education about LGBTQ issues; younger professionals joining the workforce; and more employees being open about their sexual orientation.

    Another finding from the study: 68% of Americans think equality for their LGBTQ colleagues is improving.

    Challenges ahead

    However, the study’s authors point out, there are still challenges to overcome:

    • Nearly a third of Americans say they have been harassed at work due to their sexuality.
    • Over a third of Americans disagree with the transgender military ban.
    • Nearly a half of the population (48%) say Chick-Fil-A’s donation to anti-LGBTQ organizations doesn’t matter.
    • Just under one in three Americans (29%) agree with Alabama Public Television’s decision to ban an episode of the children’s cartoon “Arthur” which featured a gay wedding; 41% thought the ban was the wrong thing to do.
    • A majority of Americans (77%) believe that LGBTQ topics should be taught in schools. Middle school was the most popular choice (25%), followed by high school (21%) and K-6th grade (19%).

    Americans had an overwhelmingly favorite communicator of LGBTQ equality in 2019 – Ellen DeGeneres.

    LGBTQ Top 10

    Ellen DeGeneres 

    Lady Gaga 

    Neil Patrick Harris 


    George Takei 


    Ariana Grande 

    Pete Buttigieg 


    Tim Cook 

     “Right now, several factors are contributing to what is a watershed moment in workplace social dynamics,” said Gabrielle Ayala, a principal of marketing and research firm Propeller Insights, which conducted the survey from May 24-31. 

     “The inclusion of high-profile LGBTQ personalities in mainstream media, especially those that transcend that label like an Ellen DeGeneres, goes a long way in breaking down those stigmas that lead to discrimination and prejudice,” Ayala said.

    “Combined with a social movement like #MeToo, the focus is shifting away from what people do in their personal lives to how people conduct themselves at the office.”

    “Curtis Sparrer, a principal of Bospar PR, said the results are  “a further sign of progress that the people Americans named as the top communicators of LGBTQ equality include entertainers, straight allies, business leaders, and politicians.”

    “That said, we have challenges to overcome. When it comes to equality, I think baseball legend Yogi Berra said it best: ‘It ain’t over till it’s over.’”

    The post Study: Majority of American workers embrace their LGBTQ colleagues appeared first on HRMorning.

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    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law, Latest News & Views, Uncategorized


    For the second time this year, a California jury has awarded a sizeable $11 million verdict against an employer stemming from a workplace sexual harassment lawsuit, according to numerous published reports.

    Late last week, a Los Angeles jury found against Alki David, a billionaire Beverly Hills producer of holograms of celebrities, and sided with one of his former employees, Chastity Jones.

    Jones alleged that David touched her inappropriately, hired a stripper to perform at work, and demanded that she view pornographic videos with him.

    She testified that she was fired for refusing to have sex with David.

    In January, another Los Angeles jury awarded more than $11 million to two former employees who claimed they were sexually harassed and retaliated against for complaining about the harassment.

    In that case, Megan Meadowcroft and Amber Brown, who worked at the Keyways Vineyard and Winery in Temecula, California, alleged they had been harassed by the general manager, Carlos Pineiro.

    During opening statements in the Jones trial, her attorney alleged David once ran his hands up Jones’ legs and ordered her to watch a porn video.

    Jones also testified a male stripper was hired to perform to celebrate an executive’s birthday. Jones said the performance was offensive and a form of sexual harassment.

    The jury apparently agreed. David said he planned to appeal.

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    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law

    How should you respond if an employee accuses one of your company’s leaders of sexual harassment?

    Progressive Women’s Leadership shares important insights in its e-guide, “Women Leaders Share What’s Working: New Ways to Prevent Sexual Harassment.”

    Here’s a sneak peek from Chapter 2:

    If a company executive (e.g., your boss) is accused of harassment, it can put you and your company in a very difficult spot.

    Suddenly, you’re faced with having to investigate an individual you report to, right? Well … maybe not, if you take some preemptive steps.

    It all starts with coming up with a plan for how you (and your company) will react … before you have to.

    Here are some best practices to implement now, as recommended by employment law attorneys and experts on harassment prevention:

    1. Create a protocol

    It’s unlikely an executive would sign off on an investigation of him/herself, so it’s often smart to create a protocol that automatically kicks in should an executive be accused of harassment.

    Some things your company may want to have the protocol state:

    • What will trigger an investigation – such as when the accused or the complainant is a company executive or owner.
    • What will happen when the investigation is over – i.e., When will the findings result in a suspension or termination? (Remember, if guilty, a harasser doesn’t have to be fired as long as what you do effectively prevents or stops the harassment.)
    • An impartial, outside firm will conduct the investigation (it can help to already have the firm picked out or on retainer).

    Putting a protocol like this in place sends the message up the ladder that harassment won’t be tolerated at any level.

    And that kind of message can also trickle down through an organization in a very positive way.

    2. Give employees multiple outlets to report harassment

    When harassing behavior comes from a direct supervisor or a person in a position of power, employees are more reluctant to complain out of fear of retaliation.

    So give employees multiple people they can go to with complaints (perhapsincluding a third-party investigative firm) and multiple avenues to issue complaints that executives can’t access (such as an online portal or phone hotline).

    To use these resources to the fullest, the EEOC recommends those responsible for receiving complaints:

    • know how to take all complaints seriously
    • are trained not to retaliate and know consequences of retaliation
    • understand/maintain confidentiality
    • have authority to initiate investigations, and
    • document everything – from intake to investigation to resolution.

    3. React promptly, consistently

    Prompt action is key to preventing further damage. This includes not only in launching the investigation, but also in handing out discipline.

    If an investigation does result in discipline, it can also pay to follow up with the accuser(s) to find out if they feel the company’s actions are effectively preventing or stopping further harassment.

    One final key: To avoid the appearance of favoritism, make sure executives are treated the same as employees when it comes to conducting an investigation and disciplining (or firing) the accused.

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    AUTHOR: // CATEGORY: Answers to Tricky HR Questions, Discrimination & Harassment, Hiring & Recruiting, recruiting, workplace diversity

    Hard and fast rules about hiring could be hurting your ability to attract talent, especially if they seem arbitrary or exclusionary.

    That issue came to the fore in a Twitter thread in early April. Business Insider Managing Editor Jessica Liebman tweeted out a link to her story on the BI website with the long and attention-grabbing headline “I’ve been hiring people for 10 years, and I still swear by a simple rule: If someone doesn’t send a thank-you email, don’t hire them.” If you do, she assures readers in the story, you’ll probably regret it.

    Every recruiting and hiring manager has specific traits and personality types in mind when they start vetting job candidates. But many people responding to Liebman’s tweet pointed out  how unconscious assumptions can hurt efforts to find and hire the best and most diverse possible workforce.

    “Good eggs”

    Liebman argues that failing to follow this point of etiquette tells her that prospects don’t really want the job. The organization and effort and “manners” demonstrated by hunting down an email address and sending the thank you puts people on her “good egg” list. Liebman reiterated that she stands by her policy to use “the thank-you email as a barrier to entry.”

    The twitterverse, or at least one small corner of it, reacted quickly and strongly. The apparent consensus was not positive.

    Workplace advice blogger Alison Greene tweeted from her @askamanager account,”Hard disagree. And it’ll discriminate against candidates from backgrounds where they don’t get this kind of job search training, which has nothing to do with skills & ability to excel on the job.”

    Software company Glitch’s CEO Anil Dash chimed in with, “The only thing a thank you note represents to me is what the norms are for the social class and cultural background of that candidate. It’s nice to get one, but literally doesn’t factor into the decision at all, and shouldn’t. I’ve been hiring people for 20+ years.”

    Others took issue in a sarcastic  tone. Freelance writer and artist Christian Fox’s Twitter persona Goth Ms. Frizzle offered a slightly higher barrier for applicants: “I’ve been hiring people for 100 years and I still swear by this simple rule, if you can’t descend into the labrynth of eternal night and retrieve the silver knife that slit the throat of god as he slept in his garden you’re not getting the job.”

    Filtering out the “unwashed?”

    Other responses pointed to cultural norms, socio-economic status, or cognitive differences as possible reasons that an applicant might not send a thank you after an initial interview. Many questioned any link between sending a note and ability to do a job well or work well with others. And many tweeters saw the policy as a gatekeeping measure that, intentionally or not, was likely to disproportionately exclude people of color and applicants with less access to career advice.

    A lawyer tweeted, “I have non-professional parents and I didn’t learn that thank you notes were an unspoken requirement/tool for filtering out the unwashed until my first year of law school. ”

    As of April 8, Liebman had not responded directly to any of the thousands of comments her tweet elicited, but Business Insider Global Editor in Chief Nicholas Carlson took the time to tweet out his own take on the article, saying, “I’m surprised how many people are surprised by this excellent advice” and “For their sakes I hope it’s a helpful wake up call.” To a suggestion that his response showed a lack of introspection, Carlson added “Lol, no. I don’t think that’s it.”

    Impact of unintended bias

    As negative reaction to the article and ensuing tweets gathered steam, Carlson later responded more seriously to a tweeted request from @writersofcolor  for “recent staff diversity stats in order to provide some context for this hiring practice?” by stating, “Thank you for this question. With respect to race and ethnicity, 28% of our teammates identify themselves as people of color. Three years ago, this percentage was 20%. Within our newsrooms, 30% of staff identify as people of color, up from 25% three years ago.” Carlson said “For context, according to Pew, 22% of people who work in US newsrooms are people of color. This is in no way ‘mission accomplished’ for us; we continue to prioritize hiring people of color.” He did not address Liebman’s specific hiring record.

    Whatever HR pros think of the original tweet — including whether it was just a successful “clickbait” campaign for the publisher — the reaction highlights how important it is to continually re-examine interviewing and hiring procedures for unintended bias that might limit diversity and opportunity.






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    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law, FLSA (Fair Labor Standards Act), FMLA (Family Medical Leave Act), Hiring & Recruiting, onboarding

    How can you find the information you need to be sure you’re compliant with changes in relevant laws and regulations? The best way is to identify at least one reliable source of information for each of the six primary “buckets” of HR: Hiring, Discipline, Termination, Recordkeeping and Retention, Administering Policies and Procedures and Legal Updates.

    Review these at least once a year to make sure they are still meeting your needs.


    Remember, hiring is HR’s greatest responsibility and the source of greatest value to any organization. If you’re successful attracting great employees, you’ll spend far less time with discipline and terminations. “Hire smart and fire less” should be your motto.

    Once you’ve found a promising candidate, carefully targeted and structured interviews are key. Make sure you have a set of specific questions for each position.

    Guides to conducting patterned interviews and other hiring tools are readily available online, in books and from HR software companies and consultants.

    Discipline and termination

    This is one of those places that having a ready-to-use template can help a lot. Best example is a Performance Improvement Plan, or PIP, template. Having it set up in advance helps you to cover all necessary bases with your PIPs and ensure your process complies with all applicable laws and regulations. The same goes for other disciplinary and termination notices. Sources for free standard form templates that you can customize include government agencies, law firms, and business associations. Check your HR software packages for any that are included.

    Recordkeeping and retention

    It is critical that you know and follow all local, state, and federal requirements for recordkeeping and retention. What records must you make and what forms are required? How long must you keep them? Almost all HR records must be kept at least three years, but many must be kept longer. Which records need to be kept separately to preserve confidentiality? Which must be destroyed and how? Which ones can just be discarded? Are there different requirements for physical and electronic documents? Government websites and local business associations are good sources for this information. Also look for law firm blogs, articles and other resources.

    Administering Policies and Procedures

    When it comes to administering your workplace policies and ensuring procedures are followed, the simple rule of thumb is to review them regularly and enforce them in a way that’s fair, equitable and consistent. It’s important that you look at your employee handbook and other policy documents at least once a year to be sure they are up to date and comply with any legal or regulatory changes.

    Legal and regulatory updates

    Keeping your policies up to date doesn’t have to be expensive. In fact, outside of the time you’ve scheduled for your policy reviews, it often costs you nothing but a little upfront prep time. In addition to the government sources noted below, most HR-focused law firms offer blogs and send out email alerts when regulations change or court decisions impact labor and employment laws. You want to get alerts whenever something changes.

    Ask around at your local HR association or chamber of commerce to ID the best sources and sign up. Add any useful blogs to your Internet bookmarks and set up a folder to collect any email alerts that come in. That way, when you’re ready to check for changes, everything will already be in one place for you to review. If you prefer hard copy, print out alerts as they come in and store them in individual binders.

    Staying compliant takes time but will save you money

    If you ever get pushback on the time required to keep your department up to date and in compliance, talk about it in a language your leadership will understand – money.

    Research shows about 89 percent of employers who get to court lose. The ones that don’t get to court have already settled, usually for big bucks. According to employment liability insurer Hiscox, small and mid-sized organizations pay an average of $160,000 to defend and settle employment claims.

    And why do they lose? The most common reasons are a lack of written policies, failing to follow the policies they have written, lack of training for managers and supervisors and ignorance.

    Beyond discrimination claims, employers often find themselves on the hook for payouts because they misclassify employees and therefore pay them incorrectly, violating mandated hour and leave policies, and failures by supervisors and managers.

    One area where you should keep managers and supervisors out of the picture entirely is filling out unemployment claims. Fewer than a third know enough to catch errors that will cost your organization. Make sure you handle it in HR. It’s a lot of work, but it’s less work than defending a mistake later.

    Why Most Employment Claims Are Filed

    Here’s a list of the laws and topics that come up most often in workers’ claims (and a good list reference for setting up alerts):

    • Title VII of the Civil Rights Act
      • Equal employment opportunity
      • Discrimination practices in hiring, disciplining and terminations
    • ADA (Americans with Disabilities Act)
    • ADEA (Age Discrimination in Employment Act)
    • Religious discrimination
    • Sexual discrimination
    • Pregnancy discrimination
    • Race, color and national origin discrimination
    • Equal Pay Act
    • Fair Labor Standards Act
      • Misclassification of workers –exempt vs. nonexempt and employee vs. contractor
      • Overtime violations
      • Miscalculations of pay
    • Sexual harassment

    Where to find additional HR resources

    • www.dol.gov
    • www.eeoc.gov
    • www.uscis.gov
    • www.nlrb.gov, and other government websites
    • State Chambers of Commerce
    • HR Consultants
    • Industry and professional associations and HR industry events
    • Law firm blogs, websites and newsletters

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    AUTHOR: // CATEGORY: ada, americans with disabilities act, discrimination, Discrimination & Harassment, Employment Law, In this week's e-newsletter

    Walmart is already paying a heavy public relations price for its announced decision to eliminate the “Greeter” position at its U.S. stores, replacing those jobs with a new position it is calling “customer host.” Now it faces at least one lawsuit and numerous EEOC complaints alleging violations of the Americans with Disabilities Act.

    The new customer host job description, scheduled to go into effect in April, includes a number of responsibilities that were not part of greeters’ jobs, including lifting up to 25 pounds, cleaning spills, collecting shopping carts, writing reports and standing for long periods of time.

    Walmart is reported to have made the change for financial reasons as the retail giant contends with rapidly intensifying competition from Amazon, Target, and others.

    While the changes were first made on a trial basis in 2015 and later expanded to all stores with a target implementation date of April 2019,  the job change attracted renewed attention and public outrage after a disabled employee’s mother wrote a Facebook post about her son losing his job. Many people Walmart employs as greeters are mentally or physically disabled or elderly.

    After the intial backlash, the company announced that it was working to find new positions for its greeters and extended the 60-day notice period for those with disbilities. Those steps came too late to head off growing condemnation of the moves on social media and wasn’t enough to stave off legal action.

    A former greeter in a Utah store filed a lawsuit in mid-March, and many other greeters with disabilities who lost their jobs have filed complaints against the company with the Equal Employment Opportunity Commission (EEOC). Experts say that the EEOC will likely look at whether Walmart should have explored accomodations that would enable more of its greeters to stay with the company even if they aren’t able to complete all of the tasks included in the new job descriptions

    The decision to change the job description frrom Greeter to Customer Host likely makes some business sense for Walmart, but this situation is a good reminder that can’t be the only consideration when making a move that will impact disabled employees or other workers in a protected class. In addition to any damage that might happen to a brand, such moves will also create an opportunity for competitors in recruiting.



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    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law, Latest News & Views

    19 United Parcel Service employees are suing the giant parcel distributor, saying they suffered repeated racial discrimination and the company did nothing to stop it, according to published reports.

    Managers and supervisors enabled and even encouraged the hate at the distribution center in Maumee, Ohio, according to the lawsuit filed March 13.

    The workers claim nooses were hung above the workstation of an African-American employee, that a monkey doll dressed as a UPS employee was placed near others and the N-word was frequently used.

    The workers, many of whom have been at the company for more than two decades, argue the racist comments caused reactions ranging from “fear, anger and disgust to dismay” about the comments and lack of action from the company.

    UPS has said it promptly investigated and took swift disciplinary action against those found to have engaged in inappropriate actions. UPS also said it has participated in remedial actions in cooperation with the Ohio Civil Rights Commission to ensure employees are trained and has also monitored its operations to ensure a positive and harassment-free environment.

    Lawyers are asking a judge to award each worker at least $25,000 in damages, relief to address the company’s “pattern and practice of discrimination” as well as legal costs.

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