A recent EEOC lawsuit—just settled for $2.3 million—gives a picture perfect example of how NOT to handle sexual harassment complaints. The harassment was compounded by retaliation and ratcheted up with evidence tampering.
In the suit, Fry Electronics worker America Rios complained to her boss, Ka Lam, that her manager was sexting her and inviting her to his house to drink. After Lam reported the harassment to Fry’s legal department, he was fired, allegedly for “declining performance.”
Unfortunately, Lam’s work had been consistently commended. This, of course, is the all-too-common situation—fired for performance but appraisals indicate above average or excellent performance. Any jury is going to look for “the real reason,” and what is there to choose from? Discrimination and retaliation.
That Wasn’t All …
Unfortunately, the retaliatory termination wasn’t the only problem with company’s reaction to the report of harassment. They compounded their problems by engaging in what the EEOC called “abusive discovery tactics,” which included, according to EEOC attorney David Lopez:
- Destroying relevant evidence
- Wrongfully withholding evidence
- Filing frivolous motions
All in all, not a performance likely to thrill a judge or a jury.
Think Harassment Is Rare These Days?
As a reminder to employers who think harassment is fading away, on the same page with EEOC’s announcement of the Fry settlement are notices of two other cases:
- DeMare Rushkin to Pay $150,000 and Furnish Nationwide Relief to Settle EEOC Sexual harassment lawsuit
- Owner of 25 McDonald’s Restaurants to Pay $1 Million in EEOC Sexual Harassment Suit
How can you keep your company out of the harassment limelight? Train, train, train. Of course, harassment training is tricky, because you want to show what constitutes improper and unacceptable behavior, but you don’t want to offend trainee while you are doing it. Here is one recommended training approach.
You know your managers could do a better job if they were trained, and now there’s a convenient and reasonable way to get it done—BLR’s Leadership Library at the online, 24/7, TrainingToday. Get More Information.
Try some quick statements and scenarios and see if trainees can see what the problems might be with the statements or behaviors described below.
1. As a manager, if I observe behavior that might be harassment, I wait until I’m sure it’s illegal. When I’m sure it is, I discipline the perpetrator right away.
Managers should not try to figure out whether behavior is illegal. (In fact, it’s not a good idea to talk in those terms—an e-mail that talks about illegal harassment is a pretty nice piece of evidence for a suing employee’s attorney.)
Typically, long before the behavior is illegal it‘s inappropriate for the workplace, so managers and supervisors should focus on whether behavior is inappropriate and contrary to policy, and whether it violates the organization’s values and principles. As soon as it is inappropriate or contrary to values, act.
2. Hey, I know Gerry gets teased a little, but if people can’t take a little good-natured kidding, what kind of team members are they?
Behavior that is kidding to one person may be offensive to the recipient and/or observers. Harassment isn’t mitigated by the motives or intent of the offender; what counts is the impact on the person offended.
“Kidding” and “just teasing’ cases are particularly problematic, because the recipient may appear to be taking the teasing in good humor. But later, on the witness stand, he or she will say, “I was going along because I feared I would lose my job.”
The bottom line is that teasing that involves sex, race, religion, or any protected characteristic is dangerous. It just won’t ever be funny in letters 6 inches high in front of the jury.
3. Sexual harassment usually involves intimate touching or other manner of physical contact.
Intimate touching and other physical contacts are an egregious form of harassment, and, in fact, may be criminal behavior, but harassment may also occur from innuendo, sexual talk, inappropriate jokes, and other offensive behavior that creates a hostile working environment.
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4. A superior says a subordinate who turns down invitations for a date will get a poor job evaluation.
This is classic “quid pro quo” or tangible employment action harassment. It is never acceptable.
5. Manager to subordinate “I think we’d be looking at a raise situation if we could share a room on an upcoming business trip.
Again, this is tangible employment action harassment.
In tomorrow’s Advisor, training statements 6 to 11, plus an introduction to the new, comprehensive training solution—TrainingToday.