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An employment lawyer who has heard it all shares wisdom from the craziest cases.
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Inappropriate touching. Over-the-top profanity. Publicly undressing in one’s place of employment. Clear grounds for firing, right? Not so fast. These unbelievable but true cases demonstrate that, even when workers are guilty of the most outrageous behaviors, employers can’t assume the company won’t face—and lose—a wrongful termination suit. Conversely, employers that take the time to make and follow smart policies can often withstand seemingly long odds against them. While cases this wacky are rare (thank goodness), the lessons they teach are universal and relevant.
The client employed a group of mechanics. All men, they developed a practice that supposedly fostered teamwork and camaraderie. It was called “CBT.”
Hands at his side, Mechanic A causally walks by Mechanic B, seemingly paying him no mind. But just as A crosses B’s path, he snaps his wrist upward, the back of his hand making contact with the underside of a highly sensitive part of B’s anatomy.
CBT stands for “casual ball tap.”
This behavior had been going on for quite a while without anyone making complaints to HR or management. Evidently, self-regulation was the norm. If a colleague CBT’d you, well, of course you would just retaliate!
Had it not been for a business downturn, this practice would no doubt have continued as the preferred method for tapping talent (so to speak). But faced with a need to reduce its staff of mechanics, the company applied its informal, undocumented and not-always-consistent layoff practice, which resulted in the jettisoning of its perceived weakest link: Mechanic X.
X did not, however, go gently into that good night. Rather, he filed a claim of sexual harassment and retaliation. He alleged that CBT had created a hostile work environment, that he had complained to his supervisor, that his supervisor had done nothing and that the company’s articulated reason for his termination was a mere pretext.
The company’s investigation did not support X’s claim. His supervisor adamantly denied ever having heard a complaint about CBT from X or anyone else. No other mechanic corroborated X’s assertions. By all accounts, X was every bit as much a perpetrator as he was a victim.
Nevertheless, the defense had to grapple with problematic facts. These included the supervisor’s prior knowledge of, and occasional practice of, CBT himself, as well as the lack of documentation of both X’s weak performance and the company’s “weakest link” layoff policy. As a result, the company spent five figures to settle the claim rather than taking its chances in court.
Morals of the Story
1. Don’t assume that because no one has complained, you’re safe from a harassment claim.
2. A weak harassment claim can nevertheless give rise to a strong retaliation claim.
3. When firing employees, there’s nothing like procedural due process, documentation and consistency.
4. When it comes to other people’s anatomy, it’s generally best to be hands off.
Sheila was a server at an Italian restaurant. Tall and attractive, she liked to, as she put it, “buzz the boys’ engines.” Among other things, she frequently recreated the Katz’s Delicatessen scene from the movie “When Harry Met Sally.” (I’ll say no more, but feel free to Google it if you’re not familiar.)
Sheila was not a stellar employee. Attendance problems and anger management issues made her a challenge for management. On one occasion when she got angry with a chef, Sheila threw a tray of pasta on the restaurant floor.
On what became her final day of employment, she arrived for work via the restaurant’s glass front doors, which faced a busy street in a tourist area.
“It’s 6 o’clock. You’re late,” her manager told her.
Sheila responded, “I’m not late. My shift starts at 6, and it’s 6 now.”
“No, Sheila, you’re supposed to be ready to serve customers at 6,” her boss explained. “Your uniform is on your arm. There’s no way you can get your uniform on and be ready to serve while it’s still 6.”
“Oh yeah? Watch me.”
Whereupon, in full view of co-workers, patrons and outside passersby (who were no longer just passing by), Sheila doffed her outer attire, leaving her temporarily clad in a bra and underwear, and then calmly donned her uniform.
“See?” she said. “It’s still 6, and I’m not late.”
“That may be true,” said her manager, “but you’re fired.”
Like Mechanic X in Case #1, Sheila did not go quietly. Instead, she went to the Equal Employment Opportunity Commission (EEOC) and claimed that she had been subjected to a hostile work environment based on unwelcome sexual conduct. She also contended that the employer’s stated rationale for termination (her striptease) was pretextual and that the real reason was prior internal harassment complaints that she had made (of which there was no documentation).
Her employer figured it had a slam-dunk case and was greatly chagrined to learn that the EEOC didn’t see things that way. Although agency staff didn’t confuse Sheila with a Sunday school teacher, they showed much more interest in what they called a “sexually charged atmosphere pervading the workplace.”
The agency interviewed current and former employees who also asserted that they were victims of sexual harassment. Faced with the prospect of defending a “pattern and practice” lawsuit against the federal government, which could bankrupt the company, it chose to settle, making payments to Sheila and the other “class” members. The total cost hit the six-figure mark.
Moral of the Story
As with the employer in Case #1, restaurant management mistakenly assumed that no internal complaint meant no problem. The company would have been better off had it understood something that defense lawyers already know well: Employees who engage in workplace sexual behavior are disproportionately more likely to claim they are also victims of sexual harassment.
Workplace sexual behavior, even sans a documented complaint, creates a breeding ground for harassment and retaliation claims. The trigger point is often an adverse employment action such as what happened with Sheila, whose termination was otherwise appropriate and defensible.
Bonus Moral of the Story: When it comes to workplace sexual behavior, don’t have what she’s having.
The company employed a large group of telemarketers who worked in a warehouse-sized room in cubicles pressed against each other like sardines. As the agents worked the phones, the collective sound was deafening.
In adjacent cubicles sat two men, young and large. One was black, the other white. Their voices were so loud that they interfered with each other’s calls. So what did they do? Raised their voices, of course!
Frustration mounted until one boomed to the other, “Lower your %$&# voice! I can’t hear a %$&# hing!”
The other responded, “%$&#! What are you talking about? You have the loudest %$&# voice in the whole room! Why don’t you lower your %$&#! voice?”
And so it went, until the two men were on their feet, yelling, gesticulating and practically frothing at the mouth, with the sound of "%$&#!" filling the air.
Activity in the room stopped. All eyes were on them.
Finally, one said to the other, “Let’s take this outside.”
Co-workers stepped in. Ultimately, no punches were thrown. After the incident, the company conducted an investigation and decided to reprimand the white employee and fire the black employee.
The terminated employee retained a prominent plaintiffs’ attorney and filed an administrative discrimination charge in which the EEOC initially showed great interest. Major litigation loomed.
Yet legal Armageddon did not ensue: In fact, the employer paid nothing to settle the claim. What happened?
The company had a policy stating that threats of violence subjected offenders to termination on first offense. All employees, including the two in question, had agreed in writing to abide by the policy. Although both were in the wrong for engaging in disruptive behavior, only one turned the topic to violence. The Clint Eastwood impression came from the black employee, and the white employee did not respond to it. Also, there had been a prior incident where a white employee had threatened a co-worker with violence, and that person had likewise been terminated on first offense.
Fear of a race discrimination claim might have induced this employer to treat both employees the same—that is, to fire both or keep both. Yet, such “consistency” would have been misguided since it would have been inconsistent with both company policy and practice.
Instead, the employer wisely asked three questions before it acted:
1. Have similar situations previously arisen?
2. What do the documents say?
3. Can we show there is no inconsistency?
Bonus Moral of the Story: Sometimes you can get something worthwhile from a telemarketing company.
An aggressive, abrasive CEO had alienated the company’s board of directors to the point that it wanted to fire him. However, he had an employment agreement that provided for generous severance if he was terminated without cause. “Cause” included serious, repeated problematic behavior that went uncorrected following notice and warning; it also included egregious misconduct that could result in immediate termination.
Termination for cause meant the company only had to pay the CEO through his last day of work. Termination without cause meant handing over a severance package totaling more than $800,000.
The problem: There was no adequate paper trail establishing proper notice and warning, nor was the board aware of any conduct that could be characterized as egregious.
The solution: While the executive was out of town on business, the company conducted a search of his computer and e-mail. It had a policy on computer use that had been prepared by counsel. Among other provisions, the policy prohibited offensive behavior, disclaimed expectations of privacy and authorized company searches.
Among the “golden nuggets” the company found was an e-mail exchange between the CEO and the president of one of its main vendors. The exchange veered away from business to an entirely different subject: the “bed-ability” of the company’s female employees. Referring to employees by name, the men jocularly debated which women would be more likely to ..., which sexual acts would be most pleasurable with ..., and which combinations of women would provide the greatest thrill.
When the CEO returned from his trip, the board president handed him notice of immediate termination for cause. She also gave him a booklet containing the e-mails in question, along with references to relevant portions of his employment agreement and company policies on computer use and sexual harassment. Finally, she offered to send a set of these materials directly to the CEO’s attorney.
Following a few feeble shots across the bow from the CEO’s attorney, the company settled the dispute by agreeing to forgive a small loan it had granted to the executive (which it previously had no intention of collecting) in exchange for a comprehensive waiver and release of all claims.
When contemplating a termination—particularly a high-stakes one—you must prepare thoroughly, analyze all information and generally get your ducks in a row. Also, make sure to keep your policies up-to-date and legally compliant. You never know when they might come back to help you ... or haunt you.
Bonus Moral of the Story: Staying on high professional ground in your communications isn’t just good in the moral or ethical sense; it’s good business.
My client got sued by a former employee who claimed she had been fired for refusing sexual advances from her boss.
At first, the manager vehemently denied the allegation and insisted that no sexual behavior of any kind had ever occurred between the two. Under persistent questioning, however, he eventually confessed to having carried on a consensual relationship with the ex-employee.
The manager and former employee worked for a property management company and frequently traveled to apartment complexes to assess the condition of the properties. During these visits, the two typically spent time “breaking in” the empty apartments with an entirely different kind of activity.
The manager was extremely reluctant to reveal this information. He explained that he and the ex-employee had gone to great lengths to conceal their affair from others, including, of course, their respective spouses.
I asked for evidence that might tip the “he said/she said” scales in my client’s favor. He denied that any such material existed—a plausible contention in the time before e-mail, texts, instant messaging, Facebook, etc. It was an era that Millennial employees can only imagine. Still, I pressed him.
“Wasn’t there anything—gifts, cards, notes, anything at all that might support your version?”
“No, I’m sorry,” he said. “We were too careful.”
I continued probing.
Suddenly, the manager said, “Wait! I just remembered something.” He pulled open his desk drawer and started rummaging through its contents. “Aha!” he cried. “Here it is!”
He produced a fragment of a photograph, no more than a half-inch wide. It showed a female breast.
“Other than the obvious,” I said, “what’s this?”
“It’s from one of our property assessment visits,” he said. “We were fooling around in an empty apartment, and I grabbed the camera that I use to photograph property conditions. It’s a Polaroid Instamatic.” (Google it, smartphone users.)
“I took a quick shot of her while she was naked. After the picture printed out, she grabbed it and began tearing it up. But then she said, ‘I tell you what. I’ll be nice and give you something to remember me by.’ And that’s when she tore off this fragment and handed it to me. I put it in my desk drawer and had forgotten all about it until your questions made me remember.”
At a mediation session shortly after this discovery, in the presence of her attorney and her husband, the plaintiff continued to adamantly deny that any form of sexual relations had ever occurred between her and my client. She scoffed at the notion that there might be evidence to the contrary.
I showed her the picture fragment. She studied it.
“Well,” she said with a laugh, “it is a woman’s breast, and a very nice one at that. But it’s not mine.”
I pointed out what appeared to be a strand of hair adjacent to the breast and said that, to my eyes, it appeared to resemble her hair.
“Wrong again,” she said.
I explained my intent to have the photograph blown up and analyzed by experts and to file a motion with the court to require an examination of the plaintiff in order to make a proper comparison. The plaintiff, her attorney and her husband responded derisively, and the mediation concluded without any agreement having been reached.
A few days later, however, I received a call from the plaintiff’s counsel. He said his client had reconsidered her position on settlement. “She has magnanimously opted to make peace, not war,” I was told.
We soon settled for a miniscule portion of her original $2.5 million demand. You might call it a mere fragment.
When it comes to claims or potential claims, nothing beats a thorough investigation—whether you’re an employment attorney or an HR professional looking into a complaint about an employee. Moreover, never take “no” or “I don’t remember” for an answer. Keep probing—“What if ...,” “Might there be ...,” “Is it possible that ...,” “Does this help your memory ...,” and so on.
All experienced litigators have stories of discovering game-changing evidence that would never have seen the light of day had they not persisted beyond the initial denial or claim of faulty memory. Especially if it’s a critical fact, keep going until you’ve exhausted every avenue that might lead to the information being revealed.
Bonus Moral of the Story: At least one thing hasn’t changed in the Baby Boomer, Gen X, and Millennial generations: A picture is still worth a thousand words.
Jathan Janove, J.D., @jathanjanove on Twitter, is the director of employee engagement solutions at Ogletree Deakins and a former practicing employment attorney.
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