I can’t believe I started my adventures in employment law thirteen years ago, when I accepted my first job out of law school as an associate at a prominent “Plaintiffs’ Firm,” a practice primarily preoccupied with helping clients seek financial redress for their injuries in the form of monetary damages.
Plaintiffs’ Attorneys are not all ambulance chasers, for the record, but all ambulance chasers are, by definition, Plaintiffs’ Attorneys.
Class action settlements? Personal injury? Worker’s Comp Claim? Yeah, that’s them.
Basically, this is the field of law which relies on late night commercials, billboards and bus ads for most of its book of business, which has created something of a mixed and sometimes unsavory reputation surrounding Plaintiffs’ Firms, even amongst other lawyers (insert punchline here).
Guilty Plea: The Sad State of Discrimination and Harassment at Work.
Of course, not having much experience at the time, I naively, unwisely and just plain stupidly decided, when asked if I had any more questions (you know the drill) during my in person interview at said plaintiff’s firm, to respond by asking, “Do you guys still actually make money off of harassment and discrimination?”
I knew as soon as I said it that I’d made a mistake. The interviewers suddenly became silent and stern, staring at me from across the table. The silence was palpable, awkward. What followed was the longest few seconds of my life…until the room erupted with laughter.
“Of course we do,” one of the interviewers told me. “How else would we make money?”
More laughter. They must have thought I was in on the joke, since I got the job. Within my first couple of weeks on the job, I understood why their reaction to a serious question had been more or less maniacal laughter.
You don’t have to work at a Plaintiffs’ firm long to hear some truly horrible and troubling stories about harassment and discrimination, and the terrible impact they can have on an individual’s well being and quality of life, both personally and professionally.
In short, there are some terrible people out there, and they do terrible things to other people. It was the firm’s job to make sure they suffered consequences for those often heinous and unforgivable actions, and that our clients received some sort of restitution in exchange for their suffering.
No victim of harassment or discrimination, of course, can ever be truly made whole, a fact that nagged at me even after succeeding in winning the most lucrative settlements or high value verdicts possible for our Plaintiffs, named or otherwise.
When you hear the stories I’ve heard, you know no matter what, justice is never really served in these employment law cases.
Headline News: Why HR Has Moved From The Back Office To the Front Page.
The horror stories should have been ancient history by the time I started my career back in 2004, but the sad truth is, we’re still faced with the same kinds of stories of horrible harassment and disgusting discrimination today as we were over a decade ago. And if 2017 so far is any indication, it looks like this is one problem that’s not going away anytime soon – in fact, if anything, it’s becoming more pervasive in the world of work today.
The egregious examples of harassment and discrimination ripped straight from the headlines in the past few months alone are nothing short of appalling.
“Uber executive leaves after failing to disclose sex harassment allegation.” – LA Times, February 27.
“Hundreds allege sex harassment, discrimination at Kay and Jared jewelry company.” – Washington Post, February 27
“Dollar General Sued by EEOC for Sexual Harassment.” – The Equal Opportunity Employment Commission, February 11
“Court Restores Plainfield Woman’s Suit Accusing Home Depot of Negligence in Daughter’s Slaying.” – The Chicago Tribune, March 28
…and the list goes on. But what, exactly, is going on with so many employers behaving so badly? The frequency and severe implications of these and countless other incidents (most of which don’t even make the paper, much less headlines) should give us all pause. It’s pretty clear by now what we’ve always known was a pretty big problem in the workplace has reached pandemic proportions.
In fact, the magnitude of these problems and their impact in the workplace may prove more pervasive and more severe than anyone ever imagined. In fact, just last week, Tesla, widely seen as one of the most innovative and cutting edge companies on the planet, was slapped with a lawsuit whose amazingly awful allegations are almost unprecedented in their depravity.
If these allegations are found to be true, Tesla could have a lot of explaining to do, to put it mildly. The 11 count complaint, filed in Alameda County Superior Court, includes a transcript of video footage taken by the plaintiff’s coworkers on the company’s Fremont, CA production line, including the following:
“N—-r, we take your ass home, n—-r. Shred you up in pieces, n—-r. Cut you up, n—-r. Send your ass so everyone in yo family so everybody can have a piece of you, n—-r. Straight up, n—-r. We get down like that, n—-r.”
I’d like to reiterate that not only is it 2017, people, but this happened at one of the most progressive employers in the planet at a Bay Area location widely seen as a bastion of tolerance and diversity. If this can happen in Silicon Valley to Tesla, of all companies, the scary truth is, this kind of incident can happen at any company, at any time – including yours.
Workers Behaving Badly: 4 Things Employers Can Do To Protect Their People.
The complaint against Tesla details how Human Resources intervened to provide “counseling” for the offending employees caught on the tape saying these despicable, unprintable epithets (and much, much more).
The way HR ultimately decided to resolve the incident, the complaint reveals, was not to formally discipline the offending workers, but instead, to transfer the complaining employee.
While there seems to be a lot to dispute in this particular case, the action Tesla took to resolve this serious incident of workplace discrimination and harassment failed to prevent the company from being slapped with not only a potentially steep legal settlement, but also a ton of unwanted press, harsh criticism and an overall black eye for what is one of the bluest of blue chip tech brands.
The potential price that companies have to pay for even a handful of workers behaving badly is one opportunity cost no employer – even Tesla – can afford. So what’s an employer to do?
Here are a few important steps every employer should consider when dealing with harassment and discrimination in the workplace,
1. Have a policy.
I know, I know, lawyers are always telling people to have a policy. But policies are important. Policies set expectations. Employees can refer to them, do their own analysis, know who they should talk to, and alert you.
Have a good one that gives some examples of what you will not tolerate in the workplace. These policies are often the first stop of employees when they suspect something is off. If you don’t have good one, employees will do their research other places.
2. Demand and Model Respect.
While it is cliché to say “respectful workplaces are productive workplaces,” it’s true. When employees are uncomfortable or anxious, they are not as productive and collaborative as they should be. Removing harassing conduct and demanding employees treat each other respect is exactly what we should require.
Today’s political climate has bred disrespect in the workplace. The proof is in the tremendous uptick in racial incidents since the 2017 Presidential Election election at schools, workplaces, and in public places.
While 18 months ago, I would have been cautious about implementing a respectful workplace policy, the world we live in these days these days suggests employers could (and maybe should) have one without too much criticism from the National Labor Relations Board.
Just craft it carefully with the help of a lawyer, and ensure that employees are required to acknowledge in writing they have received these new policies and fully understand them and their implications prior to implementing them as part of your employee policy or employee relations investigations.
3. Show Managers & Employees You Take this Seriously.
I train managers all the time using scenarios from the cases I’ve seen or read about. Every time, I’m amazed at what managers think is okay in the workplace. Sometimes, they tell me they wouldn’t do anything when confronted with a sexual harassing situation.
The jaw of the HR lady in the corner drops, and she frantically writes something down. I put them on the spot and without totally humiliating them, and walk them through the best way handle the situation to protect the company.
Most managers leave with a new sense of what they should expect of their employees and know exactly what to do when something happens., which is exactly the outcome we want with training.
Invest in good training. It’s much cheaper than a lawsuit.
Trust me on this one.
4. Do SOMETHING!
When confronted with a complaint of harassment or discrimination, you can’t choose to remain silent or put your head in the stand. Inaction is not an option. If you see or hear something, you can’t do nothing, that is, if you’re doing your job.
And it’s the job of HR and talent professionals to confront managers about harassment claims instead of sweeping them under the rug and allowing them to continue (like the HR team at Uber), choose physically moving a complaining employee to a different work area instead of confronting the instigators (like happened at Tesla) or simply pretend that it’s none of your business.
This is our business. And it’s our business to do something to DO SOMETHING to stop harassment and discrimination from infiltrating our employers and impacting our employees. That is, at its heart, what HR is really all about: protecting our people and empowering them to do their best work while at work.
Discrimination is never a company value, nor is a culture of fear a sustainable foundation for recruiting and retaining the top talent your company needs today to survive (and thrive) in the future. The longer you avoid dealing with these issues, the bigger the problem will inevitably become.
Your first step is to make it stop. Remove the conditions that allow this behavior to occur, and remove the alleged harassers from the workplace during the course of your investigation. Suspensions without pay or a temporary transfer to another shift or team are relatively common tactics employers take to gather the requisite information to determine what actually happened.
Review technology, from emails to text messages or IMs, interview any direct witnesses who might have seen an alleged incident, and comprehensively document all details of your investigation to create a record of your due diligence and support your final findings while informing your recomendations for remediation.
Second, review your policy and talk with management about what you learned. Talk with them about the consequences of what the company does next. Handling these situations poorly ends up in courts, in the press, and most certainly on review sites like Glassdoor.
Management needs to know the full spectrum of consequences. And remember, employees are under NO obligation to keep allegations or the investigation secret. They get to talk, and they inevitably will. Do not give them the opportunity to spread false informations or incomplete findings by confiding in anyone who’s not formally a part of the investigation, period. While such gossip is inevitable, it can (and should) be minimized as much as possible.
Finally, take action. Personally? I like to just cut the cord and fire.
Fire at Will: What To Do When Retention Isn’t The Answer.
By the time my clients come to me with a case who lead with “we want to fire,” instead of “we want to fix,” then I know that decision is one that they made only after a lot of introspection and agonizing over whether or not they’re doing the right thing. In my experience, by the time an employees’ actions warrant termination, firing is always the right thing to do, even if it might not feel like it at the time.
Firing employees, even with cause, can be risky for employers. But firing over documented cases of harassment and discrimination in the workplace is not only easy, but it’s a decision no one is going to ever fault you for, even if there’s some fall out. The price of inaction is far worse than the minimal collateral damage and disruptions in continuity an untimed, involuntary departure can often create.
If you choose not to fire, however, you’re taking responsibility for the employee’s future behavior, and it’s now incumbent on you to constantly monitor the situation, keep an eye on the team and ensure that things are going well and that they feel they are safe from workplace harassment and discrimination at all times.
If the employee relapses into old behaviors or there are any future incidents, no matter how minor, then you’ve got to get rid of the problem employee immediately, since you’re ultimately liable for the decision to keep them after any earlier incidents or infractions, and will be held accountable if that decision proves to be the wrong one.
Firing someone too early is easier than repairing the damage caused by firing someone too late, I’ve found. No matter how high a performer the employee is, no matter how long their tenure or deep their network or expertise happens to be, no employee is truly irreplaceable. Sure, finding top talent is tough these days.
But keeping around a problem employee who disrupts your workplace, disrespects your company, constantly harasses their coworkers and says discriminatory or offensive comments around their colleagues with impunity, you’re going to pay a bigger price than simply losing your best salesperson or most experienced staff member.
You’re probably going to lose your business, too – or at least, you’re going to pay bigly to keep them around.
And the reward is never worth the risk, as Tesla, Uber, Dollar General and countless other brands can probably tell you by now.
About the Author:
Kate Bischoff advises organizations in a wide range of industries on employment law and human resources issues, from recruitment and workplace culture to terminations. Kate is passionate about improving company culture and using technology (social media and data analytics) in the workplace. Kate speaks from experience when advising clients when administrative and court matters commence.
Prior to founding tHRive Law & Consulting, Ms. Bischoff served as a Human Resources Officer for the United States Department of State at the U.S. Embassy Lusaka, Zambia and for the U.S. Consulate General Jerusalem. Kate is also an Adjunct Professor at Mitchell Hamline, serving as faculty for the School of Law’s HR Compliance Certificate Program.