The Supreme Court ruled in 1998 (Burlington Industries, Inc. v. Ellerth, and Faragher v. City of Boca Raton) that as long as the harasser was not a supervisor, and there was not a tangible loss, the employer had an "affirmative defense." If the employer has policies that are consistent with what is required under state and federal law, and if the company can prove that the employees knew who should be contacted to report concerns about harassment or discrimination, the employer has an "affirmative defense." The EEOC has issued policy guidelines making it clear that this "affirmative defense" also applies to national-origin claims.
             The policy is distributed in a way that is noticeable to employees. It is attached their pay stubs. It is periodically sent out via intranet or e-mail with a confirmation of receipt requested. It also includes a cover letter that explains the particular need for care and sensitivity at this time -- especially toward people from the Middle East. The policy cautions against stereotyping any employees on the basis of national origin, or of repeating derogatory jokes that are heard over radio or television broadcasts. An additional not about the various channels that are open to any employee who has a complaint, question, or concern.
             Policies usually list the employees' supervisor as one avenue of complaint. Supervisory staff members who hear bantering, joking, or cultural stereotyping are considered to be on notice, and are required to take certain steps to respond. If a complaint is made to an employee's supervisor, the company is once again considered to be on notice and is obligated to respond with an immediate, thorough, complete, and objective investigation. The company is required to conclude the investigation, communicate the results, remedy the situation, and guard against retaliation. Many supervisors are unaware of these requirements. Many could oversee these steps or communicate with h...