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The Americans with Disabilities Act (ADA) became law in 1990. Despite being the law of the land for 29
years, the ADA continues to confound businesses. Last week, a jury found Walmart liable for violating
the ADA when it
refused to accommodate the disabilities of a longtime employee; it awarded the
employee $5.2 million in damages.
Walmart could “afford” the large verdict, but your company cannot. This article will help you make good employment decisions so you can focus on doing the business of your company.
Walmart employed a deaf and visually impaired cart pusher for
16 years in its Beloit, Wisconsin store.
The employee performed his job with the accommodation of assistance from
a job coach provided by public funding.
Shortly after a new store manager arrived, however, the
manager suspended the employee and forced him to resubmit medical paperwork in
order to keep his job. When the employee submitted new medical paperwork,
requesting the continued accommodation of assistance from the job coach, the
store cut off communication and effectively terminated him.
After a 3½-day trial, the jury found in favor of the EEOC
and awarded the employee $200,000 in compensatory damages and an additional $5
million in punitive damages.
“Employers have a legal obligation under federal law to
work with employees who need accommodations for disabilities,” said
Gregory Gochanour, regional attorney for the EEOC’s Chicago District.
“When companies shirk that obligation, the EEOC will fight to uphold the
rights of disability discrimination victims. In this case the jury sent a
strong message to Walmart and to other employers that if they fail to live up
to their obligations under the law, they will be penalized.”
We do not need to know every detail of the Walmart case to
know this: cases that end up in court often share a common thread of employer
mistakes. To help you avoid making such
mistakes, let’s address what the ADA requires; then we will look at how to
avoid common employer mistakes.
The ADA prohibits employers from discriminating against
employees with physical or mental disabilities. It requires that employers
provide reasonable accommodations for such employees to be able to perform
“Reasonable accommodation” means any change to a
job or work environment that permits an employee with a disability to perform
the essential functions of a job, or to enjoy benefits and privileges of
employment equal to those enjoyed by employees without disabilities. For
example, reasonable accommodation may include:
or modifying equipment or devices,
or modified work schedules,
to a vacant position,
or modifying examinations, training materials, or policies,
readers and interpreters, and
the workplace readily accessible to and usable by people with
An employer is required to provide a reasonable
accommodation to an applicant or employee with a disability unless the employer
can show that the accommodation would be an undue hardship — that is, that it
would require significant difficulty or expense.
HOW TO STAY ADA COMPLIANT AND OUT OF COURT
Here are six core issues to consider when disciplining or terminating employees with mental or physical challenges:
1. Terminating or disciplining an employee with a long tenure at the company.
The Walmart employee had been with the company for 16 years, when all of a sudden it appeared that Walmart changed the rules of the game. Any time you have an employee with a lengthy work record you should think twice about whether terminating the employee will be perceived to be for an unlawful reason.
Have you ever been to a grocery store and been helped by someone who had a disability? I had a visceral reaction when I learned that Walmart had fired such a worker. Most of us have a place in our hearts for people who are faced with challenges but who nevertheless work thru those challenges; so did the Walmart jury. When terminating a disabled employee, think optics: how will this look to the public, or to a jury?
3. Ensure you have explored a reasonable accommodation for the employee.
Do not terminate a mentally or physically disabled employee without first (1) exploring in good faith whether you can provide the employee with a reasonable accommodation and (2) documenting your efforts, because to the EEOC if an issue is not documented it never happened (i.e. the EEOC will conclude that you did not comply with the reasonable accommodation requirement).
4. Terminating or disciplining an employee with no disciplinary history.
As with a long term employee, terminating a disabled employee with a good work history, history of good reviews, or no disciplinary history is risky.
5. Decide the basis for your “undue hardship” defense before you terminate a disabled employee.
“Undue hardship” means an action
requiring significant difficulty or expense, when considered in light of
factors such as the nature and cost of the accommodation, the overall financial
resources of the employer, and the type of operation or operations of the employer.
Before you terminate a disabled employee on the basis that an accommodation will cause an undue hardship to your company, ensure that you can support your conclusion with evidence and a reasoned analysis. Consider the relatively small cost of paying legal counsel for an hour or two of consultation on your prospective termination decision, versus possibly paying for hundreds of hours if you make a poor decision and require litigation counsel.
6. Eliminate conflict and risk via a severance agreement.
In many instances both the
employer and employee are looking for a reasonable, amicable way out of a
difficult situation. Instead of
inflaming a situation by terminating an employee, consider the possibility of a
negotiated resolution via a severance agreement; under such an agreement your
company would pay the employee a sum of money and, in exchange, the employee
would provide your company with a release of any claims the employee could
You control your company’s destiny. If you understand the ADA and, equally
important, human nature, your chance of ending up on the wrong end of a
Walmart-like jury verdict will decrease to near zero.
Forrest: What’s my
Mrs. Gump: You’re gonna have to figure that out for
Art Bourque is an AV rated commercial and employment lawyer
who has been practicing law in Phoenix, Arizona for 28 years. Art provides employment law training to help
businesses operate efficiently and avoid mistakes; he is also an experienced
litigator. Art can be found at
www.bourquelaw.com, firstname.lastname@example.org, 602.559.9550, linkedin, or trail
running with his dog, Eli.
Never seem to be in a
hurry — hurrying betrays a lack of control over yourself, and over time. Always seem patient, as if you know that
everything will come to you eventually.
Become a detective of the right moment; sniff out the spirit of the
time, the trends that will carry you to power.
Learn to stand back when the time is not quite yet ripe, and strike
fiercely when it has reached fruition.
Robert Greene, The 48 Laws
of Power, Law 35: Master the Art of
Last week the EEOC announced that a nationwide health care
company headquartered in Scottsdale, Arizona will pay $150,000 and furnish
other relief to settle a lawsuit for pregnancy discrimination brought by the
Matrix Medical’s timing could not have been worse: it rescinded a job offer for a credentialing
manager position within a week of learning the applicant was pregnant.
Understand, incorrectly timing an employment termination can be very costly to your company; it will fuel the perception that your decision was for an unlawful reason. Poorly timed your HR decisions will send your company into the matrix (pun intended) occupied by the EEOC, courts, and lawyers. This article provides tips for timing employment decisions to protect your company and treat your employees fairly.
CAUGHT IN THE MATRIX
This is your last chance.
After this, there is no turning back. You take the blue pill – the story ends,
you wake up in your bed and believe whatever you want to believe. You take the
red pill – you stay in Wonderland and I show you how deep the rabbit-hole goes.
Morpheus, The Matrix
Matrix Medical offered a job to Patricia Andrews after a lengthy
interview process that included her flying to Arizona twice for in-person
interviews at Matrix Medical’s Scottsdale headquarters. Within a week after
learning she was pregnant, Matrix Medical accused Andrews of not informing the
company she was pregnant during the interview process and then withdrew its job
So began Matrix Medicals’ journey into the legal system. Andrews filed an EEOC charge of
discrimination against Matrix Medical.
The EEOC then sued Matrix Medical on Andrews’ behalf, alleging pregnancy
discrimination. A settlement agreement
was reached last week that requires Matrix Medical to pay $150,000 and issue a
letter of apology to Andrews. The agreement also requires the company to review
and revise its equal employment opportunity policies, revise its personal
leave-of-absence policy to include a provision that pregnant employees may take
leave during their first six months of employment, and train its supervisors on
Title VII and other anti-discrimination laws.
“Pregnancy discrimination remains a major barrier for women
in the workforce,” said EEOC Phoenix District Office Regional Attorney
Mary Jo O’Neill. “More than 40 years after the passage of the Pregnancy
Discrimination Act, employers still choose not to hire pregnant applicants or
to fire employees after learning they are pregnant. The EEOC will continue its
efforts to ensure pregnant applicants and employees are able to work free from
the threat of discrimination.”
HOW TO STAY OUT OF THE
I’m trying to free your
mind, Neo. But I can only show you the door. You’re the one that has to walk
Morpheus, The Matrix
Correctly timing an employment decision requires a manager to
(1) understand whether terminating or disciplining the subject employee presents
a high risk to the company and (2) implement the decision after the risk has
High risk employees include:
Employees who may have mental or physical disabilities under the
Americans with Disabilities Act (ADA)
Employees requesting FMLA leave, on FMLA leave, or who have just
come off of FMLA leave
Pregnant or recently pregnant employees
Employees who have recently made sexual harassment or
Older (over 40) employees
Employees who have recently complained of illegal activity (i.e.
or disciplining an employee who occupies one or more of these categories
presents the increased risk of a lawsuit.
The risk of a lawsuit and/or losing that lawsuit will be reduced to near
zero if your company (1) properly documents the lawful basis for the
termination and (2) correctly times
Here is an article as to how to effectively administer and document discipline or a termination.
Properly timing discipline or a termination is about making sure that there can be no perception or inference that the termination is for an unlawful reason. For example, if an employee complains to her manager on a Monday that she has been the victim of sexual harassment, and she is fired later that week, most people will reasonably conclude that she was fired because she reported sexual harassment.
time period between when an employee reports harassment, discrimination,
pregnancy, or disability, and when the employee is fired is known as “temporal
proximity.” The closer the timing, the
more the EEOC and courts will infer that the termination was for an unlawful
reason (e.g. reporting harassment), and not for a legitimate reason (e.g. poor
work performance). Courts have stated:
adverse employment action “follows hard on the heels of protected activity, the
timing often is strongly suggestive of retaliation.”
month period between protected activity and adverse employment action can be sufficient
to establish causal connection needed for a prima facie case.”
inference of a causal connection becomes tenuous with the passage of time.”
month period between the protected conduct and alleged retaliation undermines
the inference of causation.”
and four month periods have been held insufficient to establish a causal
connection based on temporal proximity.”
is no definitive period of time employed by the courts to determine whether an
employee’s termination was for a legitimate or unlawful reason. Court decisions and jury verdicts depend on
the facts of each case and the inclinations of judges and jury panels. What is
certain is that the greater the temporal proximity, the higher the risk to the
Here is your take away: be patient in disciplining or terminating an employee who has recently reported harassment, discrimination, pregnancy, or disability; and, do not otherwise treat that employee differently after he or she has complained. Federal Express recently learned this the hard way when it allegedly placed an employee who had complained under close surveillance – she was the only employee whose comings and goings to the bathroom were tracked, whose managers were constantly surveilling her, and who was written up for unexcused absences even when she provided doctor’s notes excusing these absences. A jury awarded Sheryl Hubbell $85,600 in combined front and back pay, $30,000 in “non-economic damages,” and $403,950 in punitive damages against Federal Express.
If you have a legitimate basis for disciplining or terminating an employee, and the employee has recently engaged in protected activity (e.g. made a discrimination complaint or requested ADA leave), consider contacting legal counsel to develop a plan for proceeding forward. Regardless, make sure all your decisions are legitimate and lawful and, equally so, that they will be perceived that way by others.
In sum, if reasonable people believe you have not violated the law, then you need not fear being targeted by ex-employees and plaintiffs lawyers:
Neo: What are you trying to tell me? That I can dodge bullets?
Morpheus: No, Neo. I’m trying to tell you that when you’re ready, you won’t have to.
Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 27 years. Art provides employment law training to help businesses operate efficiently and avoid mistakes; he is also an experienced litigator. Art can be found at www.bourquelaw.com, email@example.com, 602.559.9550, linkedin, or trail running with his dog, Eli.
“If mistakes happen,
effective leaders don’t place blame on others. They take ownership of the
mistakes, determine what went wrong, develop solutions to correct those
mistakes and prevent them from happening again as they move forward.”
Jocko Willink, The
Dichotomy of Leadership: Balancing the Challenges of Extreme Ownership to Lead
Observing others’ successes and failures is a good way to learn. However, the primary way we learn is through
our daily “self-experiments.” Example:
you come home tired after work and ignore your spouse. It does not go well. If you are smart you adapt: exhausted or
not, you pay attention.
Our work lives are no different. Eyes focused on serving clients and positive balance
sheets, it is easy to develop bad habits elsewhere. Ignoring employee problems is one such
mistake. You can take a small, easily
solvable problem and turn it into a lawsuit.
At some point in life most women encounter the man who
cannot take no for an answer. In the
workplace, this causes various problems.
If management does not step in and solve the problem, the company may
end up owning it. This article provides guidance for employers looking to
solve, not own, sexual harassment problems.
Last week a federal court provided guidance for employers eager
to know what to do when faced with complaints of harassment or discrimination. Many of you, particularly women, will quickly
recognize the fact pattern in Holland v.
HOW MANY TIMES CAN
SOMEONE ASK A WOMAN OUT ON A DATE BEFORE IT BECOMES HARASSMENT?
Robin Holland alleged that that Chris Bekas pursued her by
repeatedly asking her out and contacting her via text messages. Bekas admitted
that he exchanged personal text messages with Holland
three to four times a week wherein they generally discussed if they could meet
up, but Holland
usually said that she was busy. Bekas asked Holland to go to dinner with him three or
four times before she accepted his invitation.
Bekas testified that he thought Holland was interested in him because she
walked by his office and smiled, and because they had gone on a date. Bekas
further stated that he was interested in a sexual relationship with Holland.
claimed that Bekas’ harassment culminated when he touched her inappropriately
while in the back construction area at work. Holland told another employee about the incident. Holland
alleged that the employee responded “this isn’t the first time that
this, quote, creep has done this.” The employee told Holland,
who was reluctant to come forward and make a complaint, that she would report
the allegation to management if Holland
did not. Holland
then went ahead and reported the incident management by sending an email to company’s
Chief Operating Officer.
Does this sound familiar so far? I thought so. What came next determined whether the company was held liable for Bekas’ alleged conduct. Here is what happened:
was immediately suspended and required to leave the building.
had no further communication or contact with Holland, and no further incidents
talked to Holland
on the phone about the “details, exactly what happened … exactly
where she was … harassed and touched in an inappropriate manner” and
asked for a formal statement.
spoke at length about the allegations to an outside attorney hired by the
company to help investigate the allegations.
also interviewed the employee Holland
had initially spoken to.
the company had never given sexual harassment training to Bekas and its
CFO admitted that “If we had stronger policies — had we had been —
there be, you know, no contact, you know, they’re lackadaisy [sic.] as far
as making specific policies and really lackadaisy [sic.] at enforcing
them. So, you know, nobody was even supposed to be in the service
department. Nobody’s even supposed to be using these doors. Had we, as a
company, said that nobody should be back in the construction area alone,
because nobody should be back there alone. So, you know, nobody would be
in this position today. I don’t
think anybody should have been allowed in that back area alone.
HERE IS THE LEGAL
TEST YOUR COMPANY
Do you think the company was held liable? Here is the legal test for employer liability
— apply it to the facts and test your knowledge:
An employer’s liability for a hostile work environment claim
depends on whether the harasser is the victim’s supervisor or merely a
co-worker. When a harasser is a co-worker or other non-supervisor, employer
liability attaches only if (a) the employer failed to provide a reasonable
avenue for complaint or (b) the employer knew or should have known of the
harassment and failed to take prompt and appropriate remedial action. An employer’s remedial action is adequate if
it is reasonably calculated to prevent further harassment.
The mere fact that the harassment fortuitously stops does
not demonstrate that the employer acted reasonably. An investigation must be undertaken, and an
employer can be held liable if a faulty investigation renders its subsequent
remedial action inadequate, i.e., not reasonably calculated to prevent further
harassment. However, if the remedy
chosen by the employer is adequate, an aggrieved employee cannot object to that
selected action. An employee cannot dictate that the employer select a certain
Applying this test, the court ruled in favor of the
company. While it could have done things
better, the company had an anti-harassment policy and complaint procedure in
place and took proper remedial action upon learning of the alleged harassment.
Note: the company won the case despite evidence that Bekas had several incidents with other females. One testified that he asked her out on dates multiple times, “constantly approached her during breaks, and she found him to be “creepy and weird.” A male employee stated that he had witnessed Bekas offer himself to several female co-workers and make inappropriate comments to female employees. And, Bekas was reprimanded on one occasion for calling a customer to ask her out on a date. However, management had never learned of these incidents until after Holland had complained; so the company was not liable for Bekas’ conduct.
In finding for the company, the Holland court contrasted a prior case where an employer had not
acted promptly or properly: it forced a
woman to speak to five different supervisors to elicit any response from
management; management took five months between her complaint and a response;
and management’s only instruction to the alleged harasser was a one-page memo
two months after the last incident of harassment. Do not be “that” employer.
Harassment and discrimination complaints are a gift. They afford businesses the opportunity to address and resolve festering problems. Some companies. however, squander this gift. These companies get punished twice — first because the problem continues and next when they find themselves on the receiving end of an EEOC investigation or lawsuit.
By failing to prepare, you prepare to fail. Have procedures to handle harassment and discrimination complaints. Then, when you receive a complaint you will know what to do and you will do it.
REVERSAL: It is not
always proper to immediately suspend or discipline an alleged harasser before learning
all the facts; doing so could expose your company to liability to the alleged
harasser. Seek legal counsel when in
Art Bourque is an AV rated commercial and employment lawyer
who has been practicing law in Phoenix, Arizona for 28 years. Art
provides employment law training to help businesses operate efficiently and
avoid mistakes; conducts sexual harassment and other investigations; and is an
experienced litigator. Art can be found at www.bourquelaw.com, firstname.lastname@example.org,
602.559.9550, linkedin, or trail running with his dog, Eli.
“There are many different kinds of people in the world, and you can never assume that everyone will react to your strategies in the same way. Deceive or outmaneuver some people and they will spend the rest of their lives seeking revenge. They are wolves in lambs’ clothing. Choose your victims and opponents carefully — then never offend or deceive the wrong person.”
Robert Greene, The 48 Laws of Power
Some people do not honor their promises or pay their debts. We first learned this as children, when we had to make a stand in the schoolyard or in the street. We demanded the return of our ball, prized baseball card, or the cool action figure we loaned our brother or sister. Sometimes it did not go well.
As adults, the stakes have changed but the dynamic remains the same: someone owes you money or has your property and you need to get it back; you have tried the “nice” way, but you are being ignored or rebuffed. You have a choice — give up or fight for what is yours.
If you are going to
reclaim what is yours, do it well. Plan
your strategy. Do not rush into battle
(litigation) unless it is your only option.
Instead, start with a demand letter — a request stating what you
A good demand letter must:
Be clear and concise
Be strong, but professional
Identify exactly what must be done/stopped
Contain a deadline for compliance
State the consequences for non-compliance
Not contain any threat of public disclosure or criminal prosecution
Your demand letter
should not incite antagonism.
Gratuitously angering someone is rarely effective and often
counterproductive. You may create a
lifelong enemy. Strike the balance
between demanding what you want and being professional.
Another reason to be
professional: courts or juries may see
your demand letter if the matter proceeds to a lawsuit. Do not risk being perceived as unreasonable
or as a bully.
Depending upon the nature of your demand, you may need to include language to comply with certain laws, such as the Fair Debt Collection Practices Act governing certain debts. Consider consulting legal counsel before making your demand.
The biggest mistake
you can make in your demand letter is handing your opponent the keys to your
jail cell: sending a demand letter that
constitutes extortion or blackmail. Here
are the Arizona
and federal laws that criminalize such conduct:
intent to extort from any person, firm, association, or
corporation, any money or other thing of value, transmits in interstate or foreign
commerce any communication containing any threat to injure
the property or reputation of the addressee or of another or the reputation of
a deceased person or any threat to accuse the
addressee or any other person of a crime, shall be fined
under this title or imprisoned not more than two years, or both.
Understand the difference between writing a good demand letter and a
committing a crime. For example, federal
prosecutors recently indicted attorney Michael Avenatti, claiming he told Nike
he had evidence that Nike employees channeled money to recruits in violation of
NCAA rules. Avennati threatened to
release the evidence unless the company paid him and his client $22.5 million
dollars. If true, this is a crime.
Do not be like Mike [Avennati]. When composing a demand letter, think back to when you were a child. Remember the unpleasant — even violent — occasions where you took a stand and your opponent struck back. Understand, little has changed. Human nature remains what it is, only now we are adults and the stakes are higher. Do not hand your opponent a weapon he can turn on you. Instead, provide a demand he cannot resist.
Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 28 years. Art provides employment law, business operations, and other training to help companies and individuals operate efficiently and avoid mistakes; he is also an experienced litigator. Art can be found at www.bourquelaw.com, email@example.com, 602.559.9550, linkedin, or trail running with his dog, Eli.
War is deceptive: you may think you are strong and that you are making advances against an enemy, but time may show that you were actually marching into great danger. You can never really know, since our immersion in the present deprives us of true perspective. The best thing you can do is to rid yourself of lazy, conventional patterns of thinking. Advancing is not always good; retreating is not always weak.
To waste your time in battles not of your own choosing is more than a mistake, it is stupidity of the highest order. Time lost can never be regained.
Robert Greene, The 33 Strategies of War
As an employer you seemingly hold all the cards. You can terminate an employee for failing to perform or for no reason at all. Employees work for you “at will” — as long as you want them to.
Life is not so simple. Terminating an employee can be an act of war. You have just deprived someone of their livelihood. You may have wounded their pride. And you may have embarrassed them. Never be surprised when such a person strikes back at you.
As an owner, manager, or human resource professional, you are a risk manager. You must know the lawand,equally so, the laws of human nature. Ignore either and you may find yourself in court — wasting time and treasure.
This article provides you with a risk management tools to make employee termination decisions. Understand when it is better to bide your time rather than to act in the moment. Follow these guidelines and keep your time, money, and sanity. Leave bad decisions to your competition.
“It’s who you know and who you blow.” This tasteless comment from one employee to another got the employee fired. Was it a lawful termination? The question was answered last week in Scheidler v. Indiana. However, after six years of court battles I am not sure it really mattered. With the enormous waste of time and money, both sides had lost by then. Only one group had profited — the lawyers.
There are interesting legal questions which arose in the case: what are limits of what employees can say to each other? Was Brenda Lear Scheidler’s crude comment really a complaint about favoritism in the workplace — a “protected activity” for which she should not have been fired?
However, “interesting” legal questions are best left to lawyers. You have a business to run. You cannot do so while litigating against ex-employees. Therefore, let’s examine how Brenda Lear Scheidler’s employer could have avoided the fiasco from the start — and how you can be a good risk manager when faced with difficult employees.
SCHEIDLER V. INDIANA
Brenda Lear Scheidler worked for the Indiana Department of Insurance (IDOI). She sought accommodations for disabilities related to her mental health, including that her coworkers not startle her. She received these accommodations for several years. But on May 28, 2013, a frustrated supervisor reached toward Scheidler and said, “I could just strangle you.” An investigation into this workplace incident discovered that several months earlier Scheidler commented in an elevator about a coworker’s apparent promotion prospects: “It’s who you know and who you blow.”
Weeks before she made the comment Scheidler she had applied for a new position. Another employee, Mary Ann Williams, also wanted the job. As Scheidler and others left work one day, they noticed Williams was not at her station. Scheidler then said, “Oh, it looks like Mary Ann is still upstairs in her interview for her government job.”
Her co-worker responded, “Brenda, don’t we all have government jobs? We’re all State employees.”
Sheidler then replied, “Well,
I mean for her federal job upstairs … I’m sure she’ll get it because … it’s
who you know and who you blow.”
IDOI terminated Scheidler for this
comment and one other incident. Sheideler then sued alleging disability
discrimination, retaliation, and other claims.
The case went on for six years. The employer prevailed, but only after costly and time-consuming discovery, a trial, and an appeal. With better decision making by company management, Scheidler v. Indiana would never have come to be.
DO NOT FIND
YOURSELF IN COURT DEBATING THE MEANING OF “BLOW”
“Another such victory over the Romans, and we
A Pyrrhic victory is a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat. Someone who wins a Pyrrhic victory has also taken a heavy toll that negates any true sense of achievement.
Pyrrhic victories can hit close to home. Have you ever “won” an argument with your spouse, only to suffer tenfold from the ensuing fallout? Yeah, me too.
Some (mostly lawyers) who read Scheidler v. Indiana will come away believing it was a victory for IDOI. But those of us who know history — and have learned from our experiences — know otherwise. We think: how could we have avoided six years of painful litigation, while at the same time having managed this group of challenging employees?
HOW TO BE A GOOD RISK MANAGER
Risk management requires managers to first identify the risk. Untrained, inexperienced, or impetuous managers lack this skill.
Here are ways to improve your risk
management game when disciplining or terminating employees:
If an employee is a minority or in another
protected class (e.g. over 40, pregnant, disability), then there is increased
risk of a discrimination claim. For
example, Brenda Lear Scheidler had a mental
disability that she claimed was the real basis for her termination.
If there is no record of you having disciplined
the employee and/or a history of positive employee reviews, terminating the
employee for performance or other “cause” based reasons will be
If the employee has recently reported misconduct or harassment, then the risk of a retaliation claim — and liability for your company — is high.
You will increase the risk of a claim by fudging the real reason for the termination — for example, telling an employee that the company is “restructuring” or “eliminating the position” when in truth the basis for the termination is something else. In court this sort of statement can and will be used against you.
if you want to terminate an employee, but the immediate risk is too
great, it is often best to wait and establish a better record of discipline for
a future termination (assuming the employee continues to perform poorly or
engage in inappropriate behavior). In 27
years of counseling employers, I have never once seen this strategy fail to
Ask yourself: have I been consistent in meting out discipline? Treating two employees with similar offenses differently can be evidence of discrimination.
Conduct an adequate investigation into the facts
before you make a final decision.
Document discipline; if you do not write it
down, it might as well never have happened.
Understand, employees are permitted by law to criticize management and work conditions. Think twice before firing an employee on the basis of a critical, possibly offensive, comment about the workplace or your business.
Contact legal counsel if there is any question
regarding your strategy or pending decision.
A half hour call is much less expensive than a trip to the
Court can be a Roman circus. The Scheidler parties actually debated the meaning of “blow.” The judge, in making his decision, went further: “Blow” has various potential meanings. Another Lear famously hurls it without obvious sexual innuendo: “Blow winds …! Rage, blow!” William Shakespeare, King Lear, Act III, sc. ii.
You have control over your workplace. You do not have control in the courtroom. Use the tools provided in this article to make good, informed decisions and your risk of ending up in court will fall to near zero. Operate in the dark, however, and you may find yourself among lawyers and judges debating the meaning of “blow” or some such other random word.
Art Bourque is an AV rated commercial and employment
lawyer who has been practicing law in Phoenix, Arizona for 27 years. Art
provides employment law training to help businesses operate efficiently and
avoid mistakes; he is also an experienced litigator. Art can be found at www.bourquelaw.com,
firstname.lastname@example.org, 602.559.9550, linkedin, or
trail running with his dog, Eli.
“Proclaim the truth
and do not be silent through fear.”
St. Catherine of Siena
If you are a victim of sexual harassment, it’s easy,
right? Just read your company’s sexual
harassment policy and make a complaint.
Everything will be fixed, just like it says in the company
handbook. If life were so simple.
Those of us who live in the real world understand that
bullies do not like being called out. We
learned this long ago — on the playground, or the bus to school, or on the
street. Either deal with the abuse or
risk something worse by speaking up.
We like to believe that this dynamic changed when we became adults; but it didn’t. To the contrary, children are typically more open to expressing themselves than adults, who often accept their toxic environments without complaint.
Women in the workplace face a dilemma: either report sexual harassment and risk
retaliation, or “deal with it,” try to avoid the harasser, and hope
it goes away. Neither choice is easy.
THE LAW PUNISHES WOMEN WHO STAY SILENT
The law requires women to
“take advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise.” This means that if your company
has a sexual harassment reporting policy, and you fail to report harassment as
stated in the policy, you could end up being victimized twice: first, at the hands of your harasser; and later
when you are left without a remedy by the courts.
In deciding whether to
allow a claim to go forward, courts look at the reasonableness of a woman’s efforts (or lack thereof) to report
misconduct and avoid further harm. The
United States Supreme Court has held that “proof that an employee failed to
exercise reasonable care to avoid harm … will normally suffice to satisfy the
Under this standard,
victims of sexual harassment too afraid to come forward will find themselves
trapped in a hell-like place where they have no way of redressing the harm they
Modern courts understand
the hard choice women face when deciding whether to report sexual harassment. They allow certain cases to go forward
despite a woman not following her company’s sexual harassment reporting
procedure. In a recent case, a court noted
that the plaintiff’s belief that complaining would result in retaliation was
reasonable: she reasonably feared her supervisor’s hostility and retaliation by
having her fired, and her belief that reporting would be futile was reasonable
because others knew of his conduct, yet it continued. These factors were
aggravated by her pressing financial situation.
DO NOT STAY SILENT — SEEK
Do not leave your future to
chance. If you do not speak up or seek
help against your harasser, you will leave your fate to the whims of the court
system. “Hoping” that your
judge will be the one who finds that your failure to report under your company
handbook was reasonable is not a good strategy.
Here is what you should do
when faced with sexual harassment in your workplace:
Read your employee
handbook or manual; highlight every section that may apply to sexual
harassment, discrimination, reporting, and the like.
Gather and maintain
evidence to support your position; examples include emails, audio and video
recordings, notes, witness statements.
Determine if there are
other victims that will support or corroborate your experience.
Consult legal counsel:
many lawyers will discuss your situation via a free consultation or a limited
charge; depending on your case, many lawyers will pursue the matter for you on
a contingency fee basis.
Keep a diary or
chronology of what is happening so that events remain fresh in your mind over
Report the harassment
under the procedure in the handbook unless there is a situation where that
would be futile or otherwise untenable.
Consider filing a
charge of discrimination with the EEOC; this, like reporting harassment to your
employer, is “protected activity” which will insulate you from
illegal retaliation by your employer.
ON THE FLIP-SIDE: ADVICE
Employers routinely make
grandiose statements about their “progressive” and
“inclusive” workplace policies.
Much of it is just PR. But PR is
no longer good enough in the #MeToo era.
Employers must provide a workplace free from harassment and
discrimination or suffer the consequences. Lately, those consequences have been
multi-million dollar jury verdicts and settlements.
Here is what employers
should do to start 2019:
Review your company handbook cover to cover and determine if you need to make changes to either align with your current structure or comply with new laws.
Take a moment — or more — to conduct a self-audit of your workplace to understand if there is an existing harassment or discrimination issue(s) you need to get a hold of or ahead of.
Respond swiftly and appropriately if you determine there has been harassment, discrimination, or retaliation.
If you are overdue, have counsel conduct sexual harassment training for employees and management.
By taking these steps,
employers will provide a workplace where women are not faced with harassment
and the difficult decision of whether and how to come forward.
Art Bourque is an AV
rated commercial and employment lawyer who has been practicing law in Phoenix,
Arizona for 27 years. Art provides employment law training to help
businesses operate efficiently and avoid mistakes; he is also an experienced
litigator on behalf of both plaintiffs and defendants. Art can be found
email@example.com, 602.559.9550, linkedin, or
trail running with his dog, Eli.