Category Archives: harassment

Two Tough Lessons on Training

New commercial truck drivers must cover thousands of miles with a trainer before they can work on their own. For women, that means ThinkstockPhotos-57533192spending weeks in close quarters with a boss who most likely is a man.

What could go wrong?

A pair of recent Equal Employment Opportunity Commission cases suggests the situation is every bit as risky — both for drivers and employers — as you might think.

The cases involve two trucking companies that got in trouble over sexual harassment of female trainees. One escaped major sanctions and may even recover legal costs from the agency, thanks to a U.S. Supreme Court ruling that lawyers call a victory for employers.

The other … let’s just say it didn’t go well.

That company, Missouri-based Prime Inc., is one of the nation’s largest long-haul truck companies. After a female trainee charged the company with sexual harassment and the EEOC sued, the company in 2004 adopted a new procedure: women trainees were paired only with female trainers.

But in the end, the new procedure apparently did far more harm than good.

Because the company had only five women trainers, according to the EEOC, women trainees had to wait a year or more to get in. Men, however, were accepted immediately.

In 2011 the EEOC sued again, and U.S. District Court Judge Douglas Harpool didn’t have much trouble concluding the training practice was discriminatory. In April he signed a consent decree ordering the company to pay $2.9 million to 68 women who had applied to the company’s training program.

The settlements, which include back pay and compensatory damages, ranged from about $29,000 to nearly $92,000 each. The company also agreed to hire all the women immediately. In addition, the company paid $250,000 to another female driver trainee who had brought the complaint to the EEOC.

On top of that, the company — which finally ended its same-sex training policy in 2013, two years after the EEOC filed suit — promised not to reinstitute the practice.

Was Prime’s 2004 training policy a well-intentioned response to the first complaint that accidentally led to a second one? Or a passive-aggressive jab at women who had complained? In a final order in the case dated May 26, the judge says he can’t tell.

“While Prime’s same-gender training policy was illegal, misguided, and ill-advised, the court is not willing to find … [it] was evil or malicious,” Harpool writes.

The other trucking company fared better in its battle with the EEOC. On May 19 the U.S. Supreme Court unanimously found that Iowa-based CRST Van Expedited Inc. may be entitled to $4.5 million in legal expenses it incurred battling the agency over another sexual-harassment case.

The case stems from a 2005 claim by a female driver trainee who said she was sexually harassed. Two years later the EEOC filed a class-action suit on behalf of 250 women whom it said had been victimized. Most of those plaintiffs were dismissed, however, after the court found the EEOC had not properly investigated their claims.

Employment lawyers lauded the Supreme Court’s ruling as a victory for employers.  The ruling “has made clear that a defendant may be entitled to recover attorneys’ fees even absent a victory on the merits,” write Lindsey M. Marcus and Michael A. Warner Jr., partners in the employment law practice of Franczek Radelet in Chicago.

Though the outcomes were very different, the lesson for folks in HR is the same: Training, like trucking, can be a risky business.

 

 

 

 

 

 

Supreme Court Backs Workers

The U.S. Supreme Court ruled 7-1 yesterday  in the case of Green v. Brennan that the statute of limitations for Title VII constructive discharge claim begins on the date of the employee’s notice of resignation, not on the date of the last alleged discriminatory act by the employer.

According to Fisher Phillips’ Melody Rayl,  the court’s decision is a “bad one” for employers and will likely lead to an uptick in legal claims filed by disgruntled former workers.

“The question that confronted the Supreme Court is important because it goes directly to whether such constructive discharge claims are filed in a timely manner,” Rayl writes. “Prior to filing suit for discrimination under Title VII, employees must first file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days ‘after the alleged unlawful employment practice’ occurred, although the time is extended to as much as 300 days if the claim is also filed with a state or local agency authorized to investigate such claims.”

Further, Rayl writes, the Supreme Court’s decision now opens the door for former employees to file constructive discharge claims long after the alleged discriminatory conduct occurred by simply delaying their resignation indefinitely.

Now may be a good time for some legal background, courtesy of Rayl:

What Is A “Constructive Discharge?”
In a claim for constructive discharge, a former employee accuses the employer of engaging in discriminatory or retaliatory conduct that makes the working conditions so intolerable that any reasonable person in the shoes of that employee would feel they have no choice but to quit. In other words, a constructive discharge means a worker is forced off the job by the employer.

The concept of constructive discharge is a sort of legal fiction, allowing workers who claim to have been subjected to particularly egregious workplace treatment, but who have not been fired, to nonetheless resign from the offensive work environment and preserve their right to seek damages in the form of lost wages and benefits.

While the ruling is plainly a win for employees on this front, Rayl notes there was one area of the ruling in which employers can take solace:

In the smallest of victories for employers, the Court did acknowledge the limitations period should begin to run when the employee gives notice of resignation rather than on the date the resignation becomes effective.

With respect to Green, the Court found the facts were not sufficiently developed to pinpoint precisely when his notice of resignation occurred. Thus, the Court remanded the case back to the Tenth Circuit to determine, as a factual matter, whether he gave notice of his resignation on the date he signed the settlement agreement or nearly two months later when he submitted his retirement paperwork.

All things considered, that’s a small victory for employers indeed.

Can Sexual-Harassment Training Backfire?

An article in the British newspaper The Guardian has sparked new debate in HR circles over whether sexual-harassment training can cause more harm than good.

The article recounts research suggesting that training may make some men less sensitive, not more, to appropriate boundaries in the workplace. Among others quoted in the piece is Lauren Edelman, a law professor at the University of California, Berkeley :

“Sexual harassment training may, in fact, make it less likely that males will recognize situations that are harassing … Sexual harassment training may provoke backlash in males.”

Some of the research pointing in this direction is more than a decade old. One often-cited study from 2001 concluded that men who had training were less likely than those who didn’t to recognize or report sexual harassment.

But some research is more recent, suggesting the problem is not going away. In one 2012 study, a sociologist interviewed workers and sat in on training sessions. Justine E. Tinkler, now at the University of Georgia, concluded that they often resisted the message:

“Gender stereotypes are used to buttress perceptions that sexual-harassment laws threaten norms of interaction and status positions that men and women have an interest in maintaining.”

sexual harassment

Related research has found that sexual-harassment training can mostly inspire fear among workers.

This is a hot topic with many in the HR field. Many who weighed in online acknowledged the problem, but argued it’s less of an issue if the training is of high quality.

Writing in Slate, Nora Caplan-Bricker cites a 2013 study that, she says, “suggests that it is possible to teach people how to identify sexual harassment — and to convey how company policies treat it — without inciting a backlash effect.”

Studies suggest that training that lasts at least four hours, that is interactive and led by an expert or direct supervisor, rather than an HR specialist, are most effective, Caplan-Bricker writes.

Many employment lawyers seem to agree. One is Richard Cohen, a partner in the New York City office of FisherBroyles. He writes:

“After conducting my fair share of harassment trainings, and studying, critiquing and/or sitting in on numerous others, I come down on the side of those academics who believe that harassment training is helpful and productive when done right.”

More Sexual-Harassment-Policy Rethinking

Came across this recent research from the University of Missouri that adds credence to a Q&A I did late last year with the author of a Sexual harassment at work in the officebook titled Sex and the Office: Women, Men and the Sex Partition That’s Dividing the Workplace.

Both the MU researchers and the author of the book, Kim Elsesser, seem to be getting at the same point about today’s sexual-harassment policies in the workplace. For the most part, they’re not effective because they incite more fear of possible infractions than encourage healthy banter between men and women.

The more recent findings, from MU, studied how employees’ interpretations of sexual-harassment policies can invalidate the purpose of the policies. Researchers found that employee perceptions of how exactly “sexual harassment” is defined by a company’s policy can, in effect, eliminate or reshape the meaning of the policies and contradict the norms and values of the companies that try to enforce them.

As one of report’s co-authors, Debbie Dougherty, associate dean of research and professor of organizational communication in the MU College of Arts and Science, puts it:

“Although the policy statement [might specify] the importance of building a culture of dignity and respect, the participants in the study reinterpreted the policy in such a way that they believed it actually created a culture of fear. This inhibits the camaraderie participants believed was produced by normalized sexual banter, behavior and jokes.

“Our findings suggest that the ways in which employees construct meaning around the policy can preclude the usage and effectiveness of the policy; therefore, sexual-harassment-policy research should focus on the complex ways that our understandings shape policy meanings in order to find more effective ways to address sexual harassment in the workplace.”

Which is kind of what Elsesser gets at in her book. It’s her premise that senior male executives and male managers, who can and want to help women under their supervision advance, are reluctant to reach out or get into any personal discussions with them for fear they’ll be breaking company rules and policies governing sexual harassment and discrimination.

As her book’s description on Amazon puts it, “many male executives stick with other men, especially when it comes to dinners, drinks, late-night meetings or business trips, [and] when it’s time for promotions or pay raises, these same executives are more likely to show preference to the employees with whom they feel most comfortable — other men.”

So the vicious cycle continues.

Just as the MU researchers suggest, Elsesser thinks HR executives need to be aware that focusing on sexual-harassment prevention may have secondary consequences. As she says,

“Right now, our efforts to eliminate sexual harassment may be creating this barrier between the sexes. Obviously, we need to continue on the path of reducing sexual harassment — but we must figure out a way to do this without creating this barrier. Instead, we should be thinking of ways to bring the sexes together.”

Dougherty would add that organizations need to discuss their sexual-harassment policies in a clear, concise manner “to ensure each employee has the same understanding of what is meant by sexual harassment.”

“Organizations,” she adds, “also would benefit from sexual-harassment training that acknowledges the gender dynamics of harassment.”

Not to mention the gender dynamics of trying, at all costs, to avoid committing such harassment.

How Much Are Caustic Workers Costing You?

There’s been a lot of research dedicated to studying the havoc wreaked by jerks at work.

Some of these studies focus on the noxious influence that abusive, bullying bosses have on their teams, and what employees can do to cope with an out-of-control supervisor.

Some find that being a bit boorish can actually work to one’s advantage in certain situations, and share advice for recognizing when the circumstances call for flipping the jerk switch.

Some even provide tips on how to self-correct if you are the work jerk, or are in danger of becoming one.

A new working paper from Harvard Business School, however, is taking a more pragmatic look at the workplace jerk, attempting to put a price—in actual dollars and cents—on what employees who are destructive in one way or another can cost an organization.

Spoiler alert: It’s steep.

Economist Dylan Minor and Michael Housman, chief analytics officer at Cornerstone OnDemand, explored a dataset of close to 60,000 workers across 11 different firms. The goal of the ongoing study, the authors say, is to document various aspects of workers’ characteristics and circumstances that lead them to engage in “toxic” behavior, defined by the paper as conduct that’s harmful to an organization’s property or people.

“I wanted to look at workers who are harmful to an organization either by damaging the property of the company—theft, stealing, fraud—or other people within the company through bullying, workplace violence or sexual harassment,” Minor recently told the Harvard Gazette.

Housman and Minor, a visiting assistant professor of business administration at HBS, also analyzed the relationship between productivity and the ripple effect that a toxic employee has on his or her peers.

While finding those defined as toxic are “much more productive” than their less-troublesome colleagues, the authors determined that the former actually diminish the productivity of those around them, and often drive co-workers to leave organizations faster and more frequently, generating sizable turnover and training costs. Ultimately, these caustic workers are so damaging from a financial standpoint that “avoiding them or rooting them out delivers twice the value to a company that hiring a superstar performer does,” according to the Gazette.

More specifically, the paper states that, “while a top 1 percent worker might return $5,303 in cost savings to a company through increased output, avoiding a toxic hire will net an estimated $12,489.”

And that figure, the authors say, doesn’t even include the money that could be saved by avoiding the litigation, regulatory penalties or decreased productivity that a devious or disruptive employee may leave in his or her wake.

These bad seeds come in all shapes and sizes, of course. But the paper identifies a few key predictors to help find them lurking within your workforce.

Toxic workers, for example, tend to demonstrate very high levels of self-regard or selfishness and overconfidence.

As Minor points out, this kind of hubris can lead one to take unnecessary chances, riding high on the belief that he or she is too smart to ever get caught engaging in questionable conduct, or is too valuable to be hit with any real consequences if that day does eventually come.

This paper also reiterates an uncomfortable truth unearthed in past studies: These folks are often high performers, which means that many employers grudgingly tolerate their antics rather than let them go. But few studies have attempted to quantify the actual cost of keeping them on, according to Minor.

And, while many managers may be more apt to look the other way when the offending employee is, say, putting up gaudy sales numbers, an organization literally can’t afford to ignore—and, in effect, reward—corrosive workers’ bad behavior any longer, he says.

“The worst thing to do is to not do anything, which happens a lot, unfortunately.”

A Setback for Anti-Bullying Efforts?

bullyEarlier this month, HRE Editor David Shadovitz reported on Tennessee Gov. Bill Haslam’s signing of the Healthy Workplace Act, which made the Volunteer State the first in the Union to pass legislation aimed at putting an end to on-the-job bullying.

In that piece, Shadovitz pointed out that 28 states have introduced anti-bullying legislation this year. Experts, he said, predict other states will soon take similar measures, adding that New York and Massachusetts appear the most likely to pass anti-bullying laws applying to private-sector employers. (The Tennessee law only affects the practices of state and local government agencies.)

While some states may soon follow in Tennessee’s footsteps, it seems that New Hampshire took a step in the opposite direction this week.

On Monday, Gov. Maggie Hassan vetoed a bill geared toward protecting New Hampshire state employees from abusive work environments, saying the bill was “well-intentioned but unworkable,” according to the Concord Monitor.

The measure—which state lawmakers passed after current and former state workers said they had experienced bullying behavior at work—would have required state departments and agencies to develop policies to address harassment, the Monitor reports.

Hassan, however, found the legislation’s definition of abusive conduct to be overly broad, which she says could make even routine employee interactions potential causes of action. The bill “also attempts to legislate politeness, manners and the interpersonal relationships of co-workers,” she said, contending the law would lead to a significant spike in lawsuits and subsequently hamper productivity.

Conversely, bill sponsor Rep. Diane Schuett feels a failure to put anti-bullying laws in place yields roughly the same end result, with respect to employee output.

“[Bullying] undermines the efficiency within state government if you end up with one or two employees being harassed on the job, either by another employee or a supervisor, and you end up with the entire agency being aware of it and feeling like they have to pick sides.”

There might well be some truth in both of those statements. Maybe the silver lining in the New Hampshire scenario is that the bill—which state lawmakers could revive by overriding the Governor’s veto—is at least on the table, with each side acknowledging that workplace bullying is a real and pervasive problem that must be addressed in some way, even if the legislation’s workability may be at issue.

Crossing Over to the Daaahhhrk Side … Mwahahaha …

Thought this might make for a good Halloween post — a piece written by Merrily Archer, founder, president and CEO of Denver-based EEO Solutions and a former trial attorney for the U.S. Equal dv1137057-- dark sideEmployment Opportunity Commission. It’s all about … (steady your hobgoblin nerves) … the pro-employer daaahhrk side (insert eery music and a witch’s cackling howl).

Actually, the only scary part of Archer’s post is her first subhead — you guessed it: “The Dark Side.” Alarming, though, is the deep divide she describes between those going after the “evil” employers — those “villains” accused of discrimination, harassment, etc. — and the employers (and HR departments) themselves, simply trying to survive and comply in a “victim”-sided system.

Whatever faction you favor, you have to admit Archer knows each one well — each side of the ever-widening “good-guy/bad-guy” chasm, as she describes it. She’s walked and lived them both. Here’s a small reflection on her stint as an “employer-hater”:

I’d grown accustomed to the rhetoric: The EEOC and [Plaintiff Employment Lawyer Association] people did ‘God’s work’ and helped ‘victims’ of discrimination. By contrast, employers, especially the ones they were currently suing, were malevolently unenlightened, law-flouting discriminators that would discriminate, harass and retaliate with reckless abandon without their vigilance and the threat of liability.”

And a sampling of her growing disenchantment and concern that all was not necessarily right with the ship she happened to be on:

After doing ‘God’s work’ at the EEOC, however, I’d reached very different conclusions: (1) the people most ostensibly dedicated to improving the workplace make the worst employers; (2) in the most Machiavellian sense, rhetoric about ‘God’s work’ and ‘changing hearts and minds through litigation’ often just masks ego and greed; (3) the identity of the righteous ‘good guys’ is seldom clear; (4) discrimination and an employer’s ability to disprove discrimination are two very different things. Not surprisingly, when I left the EEOC to begin my employer-focused practice in 2000, my EEOC colleagues and the PELA people told me that I was joining the ‘Dark Side,’ even the ‘Forces of Evil.’

And here’s what she witnessed and went through as HR practitioners fell prey to governmental aggression:

In the victim/villain melodrama of discrimination litigation, the EEOC and PELA people cast — and treat — HR managers as incompetent boobs or raging racists. After hours of intense deposition questioning, this treatment could make most HR practitioners cry … . As a defense attorney, I’ve had to intervene in the most condescending, unconscionable bullying of HR practitioners and managers in depositions and investigations, all ostensibly in the name of vindicating another person’s rights. But to the EEOC and employee-side counsel that perpetuate [that] victim/villain paradigm, the inherent ‘evil’ of discrimination justifies their abuse of other humans accused of it. When you’re doing God’s work, after all, all is allowed.”

Lastly, as an attorney criticizing attorneys, she argues in favor of both sides uniting to rid workplaces of working conditions that, in many cases, definitely do need to change:

In theory, the EEOC, employers, civil-rights groups, and the HR community share much common ground in advancing equal-employment opportunity, but for a victim/villain model made by attorneys, for the benefit of attorneys. Employment discrimination, workplace inclusiveness and the costs to employers of EEO disputes are complex, multifaceted social problems that deserve more analysis than victim/villain caricatures. Our progress toward full inclusiveness, after all, depends on our ability to find common ground, not deepen divides.”

Granted, other voices deserve to be heard on this apparent and troubling divisiveness between the EEOC and the employers it was created to keep an eye on. But Archer’s alone sure sheds some illuminating light on a problem I, for one, didn’t know much about: the other “victims” on the “dahhrrk side” of business.

Largest Verdict in EEOC History Just Awarded

149796345--juryA Davenport, Iowa, jury awarded the U.S. Equal Employment Opportunity just yesterday the largest-ever verdict in the agency’s history — more than $240 million — in a case involving the long-term abuse of workers with intellectual disabilities.

The class-action case against Hill Country Farms Inc., doing business as Henry’s Turkey Services, was actually covered by me back in April 2011 in this news analysis. Here, too, is the ruling by the U.S. District Court for the Southern District of Iowa, Davenport Division, in September 2012, granting the EEOC partial summary judgment to move forward and also ordering the Goldthwaite, Texas, company to pay the workers $1.3 million for unlawful disability-based wage discrimination.

Coupled with yesterday’s awards of $2 million and $5.5 million for each of the 32 mentally disabled turkey processing-plant workers, for punitive and compensatory damages, respectively, the total judgment — to be exact — comes to $241.3.

The links above, along with this release by the EEOC, spell out all the sad, sordid details of this now-historic case. But just to recap here, the EEOC lawsuit says that, for many years, the owners and staffers of Henry’s Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment, such as requiring them to live in deplorable and substandard living conditions, and failing to provide adequate medical care when needed.

The EEOC also claims verbal abuses, including frequently referring to the workers as “retarded,” “dumb ass” and “stupid.” Members of the class reported acts of physical abuse as well, including hitting, kicking, at least one case of handcuffing, forcing the men to carry heavy weights as punishment and being dismissive of complaints of injuries or pain.

“The verdict sends an important message that the conduct that occurred here is intolerable in this nation, and hopefully will help to restore dignity and acknowledge the humanity of workers who were mistreated for so many years,” says EEOC Chair Jacqueline A. Berrien.

According to this Fox News account, an attorney for Henry’s didn’t respond to a message seeking comment. But the company’s president, Kenneth Henry, told the Quad-City Times after the trial  that he planned to appeal, calling some of the evidence “terribly exaggerated.”

The news account also says it’s highly unlikely the now-defunct Henry’s Turkey Service has anywhere near enough remaining assets to cover the $7.5 million in damages each man was just awarded.

“Do you think I can write a check for that?” Kenneth Henry, 72, the company’s president, told the newspaper.

But federal officials are vowing to recover every last cent they can for the men, who had been “virtually enslaved” for many years, according to developmental psychologist Sue Gant, who  interviewed them at length for the EEOC, the account states.