This article is intended for supervisors and managers who want to do all they can to minimize the possibility of their actions being challenged in court by their employees. The advice I offer here reflects my great respect for the vast majority business leaders who treat their employees appropriately. It also reflects my great respect for the vast majority of employees who conscientiously perform their duties.
Nevertheless, if you manage people long enough, there are plenty of opportunities for you to run into potential liability situations. In these situations, managers who know what to do have a significant advantage over those who don't, in avoiding self-inflicted lawsuits. The vast majority of employment-related lawsuits are self-inflicted. They are the result of a manager doing the wrong thing or doing nothing when something should have been done.
The focus of this article is on practical employee relations advice, designed to keep you out of court, keep your employees convinced they are treated fairly, and to keep your financial assets intact.
The primary role of management is leadership rather than enforcement. In policy compliance training programs, the attendees are reminded of what not to do and what will happen to them if they violate the employer’s policies. The results of these programs are often counter-productive. The work team becomes focused on their differences from each other, rather than on what they have in common; cooperation has a forced feel to it and supervisors are burdened with their role as enforcers, rather than enjoying their role as leaders. There is a more productive approach. Focus on “what to do” rather than “what not to do.” You have a better chance of enhancing “a harmonious working environment.”
Winning a lawsuit is just like surviving a hurricane. It’s nice to survive it, but better not to have suffered through it at all. True leadership requires that all supervisors model the behavior that is expected from employees. As some employers have found out the hard way, any supervisor who is equally sarcastic, overly critical, arrogant, belittling and disrespectful to everyone is a liability for discrimination complaints and poor employee morale. Not every “hostile working environment” is illegal. If a group of your employees are being treated “equally” rotten by one of your supervisors, you have a legal defense to all the time-consuming and costly discrimination lawsuits that will surely get filed. While no checks will get written to plaintiffs, lots of checks will get written to defense counsel.
Do your employees actually have a harmonious working environment? Are they free from attacks to their self-esteem and treated with respect? Establishing and maintaining a harmonious working environment requires more than the customary things employers have been long-advised to do, “to avoid legal problems.” Aiming directly at “avoiding lawsuits” is an inferior strategy in comparison to aiming at “maintaining a harmonious working environment.” Striving for the latter goal results in more success in achieving the former goal. Litigation-free management is best achieved when sought as a by-product of positive employee relations.
Positive employee relations requires attention misconduct that in too many organizations is not being addressed: inappropriate humor; personality and attitude problems, and generalized disparaging comments. To avoid the negative consequences of inaction, take action.
Show no tolerance of humor tied to protected status. “Protected status” under federal law includes race, color, religion, sex, national origin, disability, age or veteran status. Most folks who share jokes tied to a protected status have no intention of causing anyone any harm. Yet harm often occurs. The problem is that the jokester was unaware of the following two concepts that if known, would have stifled such jokes in the first place.
1) Two people cannot get closer together by talking down about a third person, particularly when that conversation is about something that person has no control over. No one got to choose what year they were born, what sex they were born with, their race, nationality or what disability they have to cope with. It might seem like two people could get closer together by doing this, but it just does not work out that way.
2) Employees flourish in an environment of high self-esteem. Whether humorous or not, comments that put others down, hold them up to ridicule, belittle or demean them, destroy their self-esteem. If jokes that attack self-esteem are also tied to any protected status, then potential legal problems exist as well. The jokes may be ruled in court to have created a hostile working environment regardless of their humor.
Consistent with these and other critical concepts, maintaining a harmonious working environment - and thereby preventing lawsuits - requires an employer to show “no tolerance” for jokes, language, and behavior which puts down anyone on the basis of any protected status.
Train first, enforce later. Since no one is born knowing these concepts, it would be inappropriate to hold anyone in your organization accountable to a “no tolerance” policy until after they have been taught these and other highly important concepts. A training program that emphasizes the benefits of a team approach and a harmonious working environment can keep pre-program jokes from being used to support post-program legal claims. “Reset The Clock” and you get a fresh start without having to worry about your organization’s past problems being used to attack you in future lawsuits.
The lack of training can result the loss of financial assets. A 50 yr. old bank teller complained to her supervisor that the other tellers frequently tell jokes about her age, poor health and medical problems. He told her not to be so sensitive, and then to lighten her up, told her a few age related jokes of his own. She quit, filed a lawsuit, and recovered significant damages for a hostile working environment. The court also ordered the bank to conduct training programs.
Address personality and attitude problems that disrupt team spirit. Very few people demonstrate such severe personality and attitude problems that termination of employment is appropriate. Often, the behavior of those that eventually do get terminated for it was fine at the time they were hired. But some time thereafter, they experience a “post-hire personality shift.” There is no reason to be frustrated by anyone who meets your attendance and performance standards, but displays unprofessional behavior. You have the right to judge the acceptability of an employee's conduct. Misbehavior stemming from personality and/or attitude, including how well an employee gets along with others, is lawfully subject to corrective action and or termination.
Require all your employees to demonstrate patience, pleasantness, impulse control and self-control. Any employee who causes confrontations, plays one person against another, or creates dissension or conflicts should be removed if he/she does not respond to corrective action. Why? Because shortcomings in character or personal chemistry cannot be overcome with training. One employer, when asked “How do you train your employees to be so nice?” responded “We don’t. We just hire and keep the nice ones.” Sounds like it’s a good place to work, doesn’t it?
Identify personality and attitude problems to an employee by observations of misconduct. Do not say to any employee “You've got a bad attitude.” That phrase delivers the wrong message: “I’m your supervisor and I’ll tell you what to think”. Instead, focus on the employee's specific conduct when taking corrective action. For example, state: “You shouldn't have done that” or “You shouldn’t have said that”. These phrases deliver the right message: “Think what you like, but you should not have (done/said) that.”
The termination of an employee with a “bad attitude” is lawful if based on observations and applied non-discriminatorily. You do not have to tolerate bad behavior such as cutting you down behind your back, openly critical of company policy or your management style.
An employee's failure to get along with a supervisor can justify termination. This can be the right thing to do, despite a generally good work record. An example: An employee was promoted and put in charge of a group of her former peers. They all behaved appropriately toward her in her new role, except one. He did not like her as a peer and was quite upset when he was told that now he reported to her. Nevertheless, he continued to show up for work on time each day and produced good work.
However, unlike all her other employees, he never brought any issues to her attention, which caused her significant problems. Anytime she asked him a question, he responded with cryptic, one-word answers, frustrating the new supervisor who thought “How do I phrase a question to this person to get a normal answer?” She initially responded with friendly coaching and counseling, which failed. Next, she resorted to formal corrective action, which also failed. After his termination, he filed an discrimination lawsuit.
In court, he tried to introduce his good attendance records and his performance appraisals, but the judge would not allow it because he was terminated for misconduct. His attendance and performance was irrelevant. His lawsuit failed because no one but him had demonstrated such misconduct. There was no evidence to support any claim of discrimination. Unfortunately for the employee, he did not know that attendance, performance and conduct are separate tracts. If terminated because of any one of these factors, an employee will not be allowed to introduce the other two factors in an attempt to challenge the lawfulness of the discharge decision.
Put an end to generalized disparaging comments that stress everybody out. Let’s assume that your organization has good complaint procedures and open door policies; that all supervisors have been trained to properly respond to complaints brought to their attention; and that all employees have been fully advised about all this. Now, to whatever extent these assumptions are not valid, you have got some open windows of liability that you should get closed fast.
Some employees never complain to supervisors, but love to complain to their coworkers. If an employee does this incessantly, at some point their work group may be reaching their breaking point. Should such behavior be brought to your attention, it could be that the complaining employee has been making generalized disparaging comments so often and for so long that their work group can’t take it any more.
Ceaseless comments like “Oh, what a horrible place to work,” “Things are so unfair to us around here” and ”We are all being discriminated against” can thoroughly disrupt a work group. If you don’t act quickly and correctly, the group’s anger will transfer to you. Now they will hold you responsible for their no-longer-harmonious working environment.
If an employee has been openly making generalized statements of unfairness or discrimination in their work group, start off your discussion with the employee by stating: “It has been brought to my attention that you have been making statements to the effect that our EEO policy may have been violated.” Then ask: “Do you have a specific concern or complaint regarding unfair treatment or discrimination, whether towards you or anyone else?” If he says yes, further investigation should be immediately conducted.
If the employee says “No not really, it’s just things in general,” use coaching and counseling rather than formal corrective action. State: “Everybody has a need to blow off steam now and then, but generalized disparaging comments about our work environment are inappropriate and must be avoided. If you ever have a specific complaint, use our complaint procedure. We will investigate and resolve it. I'll keep a record of our conversation. But I do not see a need to put anything about it in your file. Hopefully, there will not be any further instances of this and no need to consider formal corrective action.”
If you find out that the employee has resumed making these non-specific comments to coworkers despite your coaching and counseling, corrective action is now appropriate. If the employee fails to respond to the corrective action, termination of employment is now the only way you can restore your harmonious working environment. It is also lawful.
According to the courts, terminating a worker who complains in such a disruptive manner that he antagonizes his colleagues and impairs the morale of his work group, is not illegal retaliation. It would be illegal to take such action if the employee had complained about something, or anything, specifically. But there is no legal protection to complaints about nothing, e.g., “things in general.”
Planning to be lucky is not a strategy. If the content of this article has made you realize that your working environment is not as “harmonious” it should be, take advantage of the fact that you have not had its deficiencies pointed out to you by a judge. You have an opportunity to get these corrected now, and avoid having them pointed out to you again in an expensive lawsuit. Through our comprehensive and practical employee relations program, you can maximize your management team’s chances of enjoying a litigation-free future.
It's never too late to do the right thing. |
