by Kylie Crawford TenBrook
Let’s say—hypothetically—you are conducting a search for your next CEO. One résumé in particular has caught your eye. The candidate’s qualifications include managing a real estate empire worth billions and owning a marginally successful enterprise whose business model is founded on judging women by their looks.
Wanting to know more, you vet the candidate. During the vetting process, you learn the following:
- He has no experience in your industry.
- His business approach consists of making inflammatory comments rather than engaging in strategic planning.
- He apparently does not like Mexicans, referring to them as rapists, and he has made disparaging remarks about African Americans, women, Muslims, and veterans. He vehemently stands behind these statements.
- He thinks that products from China are “cheap,” but when you question him further, you learn that the products he currently sells are made in China (and—wait for it—Mexico).
- He is quick to call others names, including bimbo*, loser**, the worst***, and very dumb****.
On the upside:
- He refuses to take no for an answer.
- He apparently travels only by helicopter (or escalator) and therefore can get anywhere quickly.
- He has a full head of hair, which he will allow you to pull to ensure it is real.
Weighing these factors, would you hire him as your next CEO?
“Kylie,” you say. “Your hypothetical is too absurd—no one would hire this person to run a company.” But, alas! The person I’m referring to is Donald Trump (duh), and he is vying to be the next CEO of the great United States of America.
You’re hired! You’re sued! You’re gonna pay!
If the United States were a company and you hired Trump, what bad could come of it? Well, plenty. Let’s just take the racist, sexist, antiveteran, anti-Mexican, and anti-Muslim comments.
When an employee engages in discriminatory conduct toward a coworker, the employer will not be liable for his actions if it (1) has a policy prohibiting such conduct, (2) has a procedure for employees to report such conduct, (3) promptly investigated any allegations of such conduct, and (4) took remedial action (if any is necessary) following the investigation. However, when a “supervisor” (which the U.S. Supreme Court has defined as an individual with the power to make “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,” a definition that certainly includes the CEO) engages in discriminatory conduct, the employer is not able to take advantage of the same defense. So, if an employee can demonstrate that the supervisor’s conduct rises to the level of discrimination under the law, the employer will be liable.
If U.S.A., Inc., hired Trump as its CEO and he acted consistent with his previous behavior (which people tend to do), the company could be facing some serious discrimination charges, and perhaps even a class action or four. There’s really not much of a defense to put up, so U.S.A., Inc., should be ready to pay.
For the record, I wouldn’t hire Trump. But what do I know? I’m just a bimbo loser who thinks the worst is perhaps better than what’s to come.
*bimbo: a woman who challenges the speaker with regard to his views on women.
**loser: someone who attempts to employ logic rather than inflammatory statements.
*** the worst: Barack Obama.
****very dumb: used to describe someone who is in competition with the speaker.
Kylie Crawford TenBrook serves as corporate counsel and previously, she practiced labor and employment law exclusively. In her spare time, she enjoys reading about the misdeeds of celebrities, politicians, and professional athletes and making the tenuous connection between those missteps and what she does for a living.
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