Monthly Archives: April 2015

FOLLOW-UP ON RACISM IN THE WORKPLACE: AT&T FIRES ITS PRESIDENT FOR OFFENSIVE TEXTS

Today, AT&T fired its President for sending racist texts on his cell phone.  The firing — and 100 million dollar lawsuit against AT&T by the alleged victim — highlight the need for companies to stay ahead of potential race claims.

According to the news outlet that broke the story:

“[The plaintiff] claims AT&T President Aaron Slator’s former assistant was transferring data from his old cellphone to a new one when she came across a text to one of Slator’s friends that allegedly had a picture of an African child with the caption, “It’s Friday N****s.” Slator allegedly sent it to a friend with the message, “Oldie but goodie.”

King, who is African American, claims in her lawsuit AT&T knew about the incident but never reprimanded Slator. King also says Slator went on a harassment campaign against her because she was close to the person who discovered the text.

King also claims the culture of the entire company held her back for decades, and she was repeatedly passed over for promotions in favor of less qualified non-African Americans.

She’s suing for $100 million, claiming racial discrimination.”

AT&T issued the following statement today:

“Aaron Slater has been terminated. There is no place for demeaning behavior within AT&T and we regret the action was not taken earlier.”

AT&T President Fired Racial Texts

AT&T President of Content and Advertising Sales Aaron Slator (Photo by Imeh Akpanudosen/Getty Images for Variety)

AT&T’s conduct will be closely scrutinized in this case:

  • Did it promptly investigate when it learned of the texts?
  • Did it promptly deal with the alleged victim’s complaints or allow the alleged discrimination to continue?
  • What are AT&T’s policies on race discrimination and does AT&T abide by these policies?

Jokes are funny until they are not.  If you have an employee like Aaron Slater  — someone who is sending offensive texts or emails, or making offensive comments around the water cooler —  act quickly to stop him.  As AT&T will confirm, racial jokes in the workplace are no laughing matter.

CASE STUDY ON RACISM CLAIMS IN THE WORKPLACE: A SMALL TOWN IN WASHINGTON ON THE BRINK

One would think it to be easy to avoid racism claims in the workplace:  simply do not engage in racist behavior.  But life, and race relations, are not that easy.

By analyzing an ongoing case in the small town of Orting, Washington, this edition of the HR Law Insider addresses (1) the difficult nature of race issues in the workplace and (2) how businesses can put systems in place to avoid race claims.

“WHITE CITY” HIRES ITS FIRST BLACK POLICE OFFICER

Orting, Washington is a small town southeast of Tacoma.  According to the Washington Post, in the fall of 2013:

“The place once known as “The White City,” in part for its lack of diversity, had hired a black police officer, its first since the town’s founding in 1889.

“Congratulations! Welcome to our team,” read a letter that Pickens received with his badge.  Eighteen months later, if Orting can still agree on anything about Pickens’s arrival, it is that his first day was also his best day — the one when questions of race and policing still felt like problems for bigger towns.


Gerry Pickens (Jahi Chikwendiu/The Washington Post)

NOT SO “HARMLESS” JOKES AND PERCEIVED SLIGHTS

Race claims oftentimes involve similar fact patterns:

  • Jokes initially thought to be harmless are later deemed malicious;
  • Discipline meted out by a business is challenged as discriminatory — with examples of how non-minorities are allowed to skirt work rules; and
  • A termination justified and substantiated by a business is attacked as discriminatory and retaliatory by the alleged victim — leaving a judge or jury to sort things out.

Gerry Pickens’ claims against the town of Orton Washington contain all these features.  As reported by the Washington Post:

“[I]t surprised Gerry Pickens when he arrived back in Orting in the fall of 2013 that one of the first jokes he heard featured him as the punch line. A resident had seen Pickens on patrol and called 911. “There’s a police car being driven by a black juvenile,” the resident had reported, and for the next several weeks some of Pickens’s co-workers had referred to him as the “black juvenile.” What he wanted to tell them was that he wasn’t a rookie, and that he had responded to more 911 calls than any of them while working in Atlanta — but maybe it wasn’t meant to be racist so much as it was just a bad joke. He decided to laugh. He decided, then and again, not to blame his experiences on race.

Maybe it was because he had the least seniority that he had been given an older car, with a battery that occasionally went dead when he turned on his police lights. Maybe the police chief was only trying to be thoughtful when he mentioned, in Pickens’s memory at least three times, that Pickens should be vigilant about his self defense because Orting was an old-fashioned place that believed in the Second Amendment, where white supremacist groups remained active and well armed. And maybe Pickens had only himself to blame when his imagination began obsessing about those groups between 2 and 6 a.m., when he was the only officer on duty. He sometimes wondered: If one of those groups ambushed him, would anyone provide backup? How long before help would arrive?

Only when the police chief suspended Pickens for a week in April 2014 did he become convinced that racism was the cause, and that it was no longer enough to act grateful and smile back. Another Orting officer had been able to stay at work while being investigated for using excessive force on a teenager; Pickens was sent home based on an accusation of lifting weights at a local gym without paying for the visit. Pickens decided not to complain directly to the chief or his supervising lieutenant. “I didn’t want to have the race talk with anyone I saw every day,” he said. Instead he called the mayor, Joachim “Joe” Pestinger, and they met at a park.

“I keep saying to myself that this doesn’t have anything to do with my race, but something’s going on,” Pickens said he told the mayor that day.

THE TOWN’S CASE AGAINST PICKENS:  HE WAS A BAD EMPLOYEE

As in any race case, there are two sides to the story.  As reported by the Washington Post, the town police chief Bill Drake alleges Pickens was simply a bad employee:

“[After] Pickens started so did a succession of problems. According to a document Drake later provided to the Equal Employment Opportunity Commission, Pickens disappeared from radio contact during his shift, approached a high-risk traffic stop with his hands in his pockets, ignored advice from his training officer and submitted sloppy accident reports that were left two-thirds empty. While Drake’s other officers averaged about eight citations a month, Drake reported that Pickens wrote one or two. Maybe he really was establishing trust with teenagers when he played basketball in his uniform, but in the monthly statistics, that added up to a lot of loafing around. “There are motivational issues,” an officer in charge of training Pickens told Drake, so the chief began devoting time to counseling Pickens himself.”

Drake counseled Pickens about his performance in March, wrote him a letter in April and spoke to him again in August. The two men never discussed race. Pickens never said what it was like to be the first black officer in Orting. Drake never asked.

“Orting is a small town, and nothing goes unnoticed here,” was as far as Drake would go.

“Obviously, my situation is a little unique,” was all Pickens would say.

PICKENS’ TERMINATION AND SUBSEQUENT $5,000,000 CLAIM AGAINST THE TOWN

Pickens was terminated for “unsatisfactory performance” on September 9, 2013.

At first, Pickens alleges he had no intent to sue the town.  Then, according to the Post, unable to find a new job, Pickens’ life began a downward descent and he reconsidered:

“Pickens expanded his search and applied for police jobs in Oregon and California. He made appointments with a psychologist and lost 20 pounds, which he attributed to stress. He signed up for unemployment insurance and stayed home with his 2-year-old daughter, taking her to the playground in downtown Orting where he could watch the police cars cruise by as the pressure built in his chest. “They took my manhood, my income, my security,” he said. “They thought I was just some dumb black guy who would take unemployment and kick rocks.” He began writing down all the ways he thought he’d been discriminated against: co-workers who called him a “token black guy,” discrepancies in his vacation time and racial epithets shouted at him by a resident when he responded to a disorderly conduct complaint. He compiled testimonials from supporters until one morning a neighbor came banging on his door. She screamed something about his truck, and he followed her outside. His daughter saw it first. She said somebody had drawn on it with a crayon, but she was too young to read the words. “Nigger,” it read on one side. And then, on the other: “Sue cheif and pay.”

Vandals wrote all over Pickens' SUV one night in January, as word spread that he was consulting an attorney and considering filing suit, local news outlets reported.Orting Police Department

Pickens has filed a charge of discrimination with the EEOC and is demanding that the town pay him $5,000,000 in damages.  As reported by the Post:  “We don’t have $5 million to spare,” the mayor said, thinking about Pickens and his demand. Even if the town did have some kind of insurance to help cover it, he had made up his mind. “I don’t want to settle for one dollar, if it’s my choice,” he said. “This is a false accusation, and I don’t want to give it any merit.”

HR LESSONS FROM THE ORTING, WASHINGTON DEBACLE

Pickens v. Orting Washington will be resolved via a court battle or thru settlement.  Either way, the damage to both Pickens and the town is immeasurable.

Here is a list of steps your business can take to avoid race claims:

  • Once a year have legal counsel conduct a training session with management and supervisors on workplace discrimination
  • Ensure you have clear policies on workplace discrimination, including policies prohibiting jokes, innuendo, inappropriate emails, etc.
  • Ensure your policies are consistently enforced and reinforced with your employees
  • Ensure you have a clear procedure in place for employees  to complain about perceived race discrimination, and that you follow that procedure
  • Look for obvious and subtle signs of discontent among employees who may believe they are being singled out because of their race or other status
  • When considering discipline, always ask:  do I have sufficient facts and can I support this discipline as non-discriminatory
  • Carefully document any discipline
  • Consult legal counsel on moderate to high risk terminations, or when there is any concern about a pending decision to terminate an employee

LONG ISLAND LIMO COMPANY LIABLE FOR FIRING FEMALE EMPLOYEE WHO REFUSED TO HAVE SEX WITH MANAGER

The New York Post reported today that a married Long Island ­limo-company manager told a female dispatcher he was firing her because she rejected his sexual ­advances — and even put it in writing: http://nypost.com/2015/04/10/boss-texts-gal-shes-fired-because-she-refused-his-sexual-advances/

According to the Post:

“The damning text — sent by former US Limousine manager Raymond Towns­end to pretty underling Geralyn Ganci — ended up costing him and his employer more than $700,000 in legal damages and fees, court papers show.

Ganci, 32, sued Townsend after she was fired for repeatedly refusing his barrage of sleazy requests, which eventually landed her in the hospital with extreme emotional distress, her suit said.

The sex-crazed Townsend said in one text that he “had to pull over to the side of the road and masturbate thinking about me,” Ganci said in her suit.

Ganci said she was shocked and sickened by his behavior — which occurred despite the fact that Townsend’s wife worked at the same New Hyde Park company and sat near her.

Finally, after allegedly forcing her into a restroom and putting his hand up her shirt, Townsend told the resistant Ganci she was fired in February 2009.

“The plaintiff even received another text message from Raymond Townsend which has been preserved stating that the reason plaintiff was fired was because she ‘refused to have sex with the general manager,’ ” according to the court papers.”

WHEN IS AN EMPLOYER LIABLE FOR ITS SUPERVISOR’S SEXUAL HARRASSMENT?

An employer may be subject to liability to a victimized employee for a hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.  However, when no tangible employment action is taken, a defending employer can avoid liability IF (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

While proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden.

No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

LESSONS FROM LONG ISLAND

Rogue supervisors — such as the Long Island limo manager — are unfortunately present in many companies.  To avoid liability for a supervisor’s misconduct, ensure that:

  • Your company has a solid complaint procedure in its employee handbook and/or other policies;
  • Any complaint procedure provides that the alleged victim can complain not only to the employee’s supervisor, but also to upper management and beyond in the event that the employee is uncomfortable complaining to the supervisor or unsatisfied with the company’s investigation;
  • The complaint procedure is known to all employees, documented as such, and reviewed with employees by management on at least an annual basis;
  • Company management is trained by legal counsel periodically on handling and investigating complaints;
  • The Complaint procedure is reviewed annually for any changes in the law or your organization;
  • Your company carefully follows its complaint procedure; and
  • If there has been supervisor harassment, it does not culminate in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

 

 

SEVERANCE PAY: WHETHER, WHEN, AND HOW TO PAY IT

Paying severance money to terminated employees is standard practice with many companies.  Many other companies, however, elect not to pay severance, or choose not to pay severance when terminating a problem employee (as opposed to a good employee).

Absent an agreement, typically there is no requirement to pay severance money to departing employees.  Still, there may be good reasons to do so.  This edition of the HR Law Insider discusses (1) when severance pay is required; (2) when severance pay is advisable, albeit not required; and (3) protecting your company when paying severance.

WHEN SEVERANCE PAY IS REQUIRED

Severance pay is required when a company has an agreement with an employee(s) to pay it.  Failure to pay can expose a company to a breach of contract claim as well as a claim under Arizona’s treble damages statute (many other states have similar statutes).

Under Arizona’s wage statute, “wages” means:

Nondiscretionary compensation due an employee in return for labor or services rendered by an employee for which the employee has a reasonable expectation to be paid. Wages include … severance pay … and other amounts promised when the employer has a policy or a practice of making such payments.

A “reasonable” expectation of severance pay can arise from an agreement to pay or from a policy or practice of always paying it.  Therefore,  unless an employer wishes to pay severance, it should advise employees that it is not a company policy or practice to pay severance to departing employees  — but the company reserves the right to do so if it elects.

WHEN IS SEVERANCE PAY ADVISABLE, ALBEIT NOT REQUIRED?

Even when it is not required, paying severance should be considered under the following circumstances:

  • To reward loyal and productive employees;
  • To help employees bridge the financial gap while looking for their next job;
  • To reduce and/or eliminate the chance of an EEOC claim or lawsuit; and
  • To foster future cooperation and good will.

An employer wishing to obtain the benefits of reducing or eliminating claims should enter into a written severance agreement with a departing employee.

THE SEVERANCE AGREEMENT:  PROTECTING YOUR COMPANY

A severance agreement is a simple and effective way to make sure that your company will not pay money to a departing employee, only to have the ex-employee turn around and  sue the company for an alleged past slight.

BEFORE your company agrees to pay severance to a departing employee, it should advise the departing employee that payment is conditioned on the company and employee entering into a severance agreement, which will contain a number of terms, including a general release.  DO NOT first promise to pay severance and then later place a severance agreement on the proverbial table; arguably, by then it is too late — your company has given the employee a reasonable expectation of payment without the burden of a severance agreement.

A severance agreement should be tailored to the particular situation and employee.  Beware form agreements, which may contain terms that either invalidate the agreement or that are missing terms necessary to effectuate the agreement.  Moreover, form agreements often lack terms that, while not mandatory, can substantially benefit a company (e.g. a cooperation provision if the company might need the ex-employee’s help in the future on a business or litigation issue; a confidentiality or non-disparagement provision for a difficult employee).

CONCLUSION

Employers must first determine whether they are obligated to pay severance; if so, they should be prepared to pay — potentially as early as seven days after terminating an employee.  Under Arizona’s wage statute:  “When an employee is discharged from the service of an employer, he shall be paid wages due him within seven working days or the end of the next regular pay period, whichever is sooner.”

If an employer is not obligated to pay severance pay, it should nevertheless consider doing so for the reasons articulated above.  If the employer decides to pay severance, in most instances it should obtain a signed severance agreement before payment.

Particularly in high risk terminations, employers should contact legal counsel to: (1) develop a strategy to handle the situation: (2) determine how to communicate the decision to the employee; and (3) draft a severance agreement that the employee will sign, that complies with the law, and that provides the maximum protection to the company.

The movie “Up in the Air” demonstrates how difficult employment termination meetings can be and how they can be managed with careful planning and execution.   If only life were this easy (caution:  language):