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Many employers try to do the right thing for their workforce, but their actions could still land them in court if they don't understand their legal obligations, according to Walter Stella, an attorney with Miller Law Group in San Francisco.
"The road to litigation is paved with good intentions," he said at the California State Council of the Society for Human Resource Management's 2017 California State Legislative and HR Conference. He identified key areas where employers unknowingly stray from the law and offered suggestions for rolling out best practices in the workplace.
Regarding sexual harassment and gender discrimination, Stella said employers sometimes focus their preventive or remedial efforts on the wrong things. Here are a few examples.
[SHRM members-only toolkit: Managing Equal Employment Opportunity]
Environment Needs to Change
Stella told the story of a small construction company with all male workers that hired its first female employee as an office administrator. The owner was aware of unseemly conversations the men had and was concerned about potential hostile work environment claims. He told the female employee about the environment during the interview, and she said it was fine.
To be sure she had an open channel of communication, the owner periodically checked in with her, and she never complained.
After six months of employment, however, she quit and filed a lawsuit. She claimed that every day she came into the office someone was making inappropriate comments and that she didn't feel comfortable talking to the owner even though he told her that she could approach him about anything.
In this case, the owner knew about the need to prevent a hostile work environment claim and thought he was being proactive. So what went wrong?
The owner focused on the female employee's comfort with the environment and not on the environment itself. The real problem was that he assumed that the workplace could stay the same, Stella said, and his conversation with the female employee during her interview could be viewed as an admission of a hostile work environment.
Furthermore, the female employee said she felt that the owner only checked in with her shortly after inappropriate comments were made.
The legal obligation is to make sure the work environment is acceptable to everyone, Stella noted.
Same Gender Can Offend
Another hostile work environment claim concerns a workplace where sexual banter was common between male airline pilots and female flight attendants. Some female employees engaged in the banter and others complained.
After investigating, the airline found that the banter violated company policy and that something needed to be done about it.
The law doesn't necessarily require discipline, Stella explained, but it does require an employer to take all steps necessary to prevent further harassment.
The airline decided to fire all the male pilots and none of the female flight attendants—and the pilots sued for gender discrimination.
An appellate court ultimately upheld the airline's decision to only terminate the men. Two people must be offended in a hostile work environment claim: the actual victim and a "reasonable person," Stella said.
In this case, none of the male employees said they were offended. However, the female employees who complained said they were offended and so did some women who engaged in the conduct.
That's why the airline concluded that the men created a hostile work environment for the women, but the women didn't create such an environment for the men.
But Stella said the airline and the appellate court got it wrong by looking at the situation too narrowly: Some of the women were responsible for the hostility, too.
"Women can create a hostile work environment for other women," he said. "You don't get a pass just because you're in the same protected group."
A trucking company was sued by female truck drivers for sexual harassment. Thereafter, the company implemented many best practices, such as training programs and new policies. Company leaders also decided that all new female drivers would be trained by other female drivers.
The company thought it was doing a good thing—but that was the wrong thinking, Stella said. They created a scenario where women could only be trained by other female truck drivers, and in reality, they didn't have that many female drivers available to do the training. This caused a backlog for women to get hired and get started on the job.
The Equal Employment Opportunity Commission said that the differential treatment created gender discrimination in this case.
"So there was an unintended consequence that the company never really thought about," Stella added.
Stella said doing the "right thing" doesn't always work out for employers. He noted, however, that employers should continue to try and do the right thing—but they should be knowledgeable about the impact their decisions will have on the company and on a particular situation. They should analyze every employment action for potential negative outcomes and take steps to avoid those risks.
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