“I wish I could see your pretty lips if they match ur eyes.”
“Come on, sweetie. Lemme see that pretty face under there. Take it off for me, will you? Just a quick flash.”
“I can be covid and make you short of breath.”
“I don’t wear a condom; I sure as hell aren’t going to wear a mask!”
“Social distancing? My pocket rocket can still reach you.”
“I’ll take your mask off and stick my tongue down your throat.”
These are just a few of the hundreds of awful and offensive comments to which service industry workers reported being subjected while working during COVID (report here).
As I recently pointed out, unlawful harassment is unlawful harassment, regardless of the alleged perpetrator. An employer cannot treat sexual (or other illegal) harassment of an employee by a non-employee any differently than harassment between employees. Indeed, in the words of the Ohio Administrative Code:
An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employerâs control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.
What should an employer do when a customer is harassing an employee? Take the same five steps it takes when an employee is harassing another employee:
Separate the victim from the alleged harasser.
Promptly and fully investigate the allegations.
Evaluate the evidence and make a reasoned conclusion as to what happened.
Take prompt and effective remedial steps, if necessary.
Use the complaint as an opportunity to retrain employees about your anti-harassment policy.
“The customer is always right” still holds true for most things, but not if the customer is unlawfully harassing your employee.
For last night’s dinner, I decided to use the leftover meatballs from the prior night’s spaghetti dinner to make meatball subs.
The only problem? No hoagie rolls, which led to the following conversation with my wife:
Me: I need to stop and get buns for dinner.
Her: Ooh, will you toast them?
Me: I’ll toast your buns alright.
Her: That’s sexual harassment!
Me: Take it up with HR.
All jokes aside, does a company’s obligation to take corrective action when it becomes aware of sexual harassment in the workplace extend to an employee’s home when that home is also the employee’s workplace?
A harassment complaint is a harassment complaint, regardless of the alleged perpetrator. An employer cannot treat a complaint by an employee against a non-employee any differently than an intra-employee complaint. Indeed, in the words of the Ohio Administrative Code:
An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employerâs control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.
There is no reason to think these protections don’t extend to employees who are working from home ⌠although the ability of another’s employer to control my conduct as a nonemployee in my own home is pretty much nonexistent.
Which begs the question: If my wife goes to HR to complain about me offering to toast her buns, what are the potential consequences? Let’s hope I don’t have to find out, but I’m guessing the risk is pretty low.
An African-American employee claims he suffered rampant discrimination at the towing company at which he worked, including being called racial slurs.
But thatâs not what qualifies A&B Towing for its nomination as the Worst Employer of 2020. Itâs what happened to Michael Fesser after he complained to his boss about the discrimination and harassment that is truly eye-opening and offensive. NBC News has the details:
West Linn police began investigating Fesser in February 2017 after Fesser raised concerns to his boss, Eric Benson, owner of A&B Towing, that he was being racially discriminated against at work. âŚ
After he raised his concerns, Benson contacted West Linn Police Chief Terry Timeus, his friend, and persuaded to look into allegations that Fesser had stolen from the company, according to the lawsuit.
The suit said the theft allegations were false and unsubstantiated.
But with the approval of West Linn police Lt. Mike Stradley, Detectives Tony Reeves and Mike Boyd used audio and video equipment to watch Fesser while he was at work, according to the suit. The surveillance was âconducted without a warrant or probable causeâ and did not result in any evidence that Fesser was stealing from his employer, the lawsuit stated.
Regardless, West Linn officers, with the help of Portland police officers, arrested Fesser days later based on Reevesâ and Stradleyâs âfalse representationsâ to Portland police that they had probable cause for an arrest. âŚ
Fesser spent about eight hours at the police station before he was released on his own recognizance. He was later contacted by West Linn police to come to the station to retrieve some of his belongings. While he was there, officers informed Fesser that he had been fired from his job, according to the lawsuit. âŚ
According to the lawsuit, criminal charges in the arrest werenât filed until after Fesser sued his employer over his termination and for discrimination. The charges were later dismissed.
If you call in a friendly favor to the chief of police to have an employee falsely arrested after that employee complains of workplace discrimination and harassment, you might be the worst employer of 2020.
After being harassed by co-workers, Paul Ellis took to Facebook to air his grievances publicly.
Among his comments was one that could be perceived as a threat violence: âheâs gonna have an accident on the dock.â When another employee brought a printout of the post to their employer, FedEx, an investigation began. During that investigation Ellis admitted that one could perceive that comment as a threat. As a result, FedEx fired him.
Prior to his termination, Ellis frequently took leave under the FMLA to receive treatments for his chronic back pain and to take care of his sick mother. He alleged that FedEx retaliated against him for his use of FMLA leave by terminating him.
Ellis cannot demonstrate a causal link between his FMLA leave and his termination. He consistently used FMLA leave for two years without issue. Each time he called out sick, his supervisors covered his shifts, and each year that he applied for recertification, FedEx approved. It also actively accommodated FMLA leave for 42 employees between May 2013 and May 2017 at the Delanco service center.
Instead, FedEx terminated Ellis because it concluded he violated the companyâs prohibition on workplace violence. He admitted to his supervisors that his Facebook message could be perceived as threatening, and he was fired shortly after the investigation concluded.
Many employees who engage in protected activity (such as taking FMLA leave) mis-perceive that their jobs are bulletproof. Nothing is further from the truth.
Yes, employers need to be diligent when firing an employee who has engaged in some form of protected activity. But, if you would fire the employee absent the protected activity, and have consistently done so with others under similar circumstances, why give an employee a free pass?
Assuming Stanâs correct, and more people are becoming more comfortable openly using this generally considered highly offensive and taboo word, how should you react if your employees start using it among each other? Swiftly and decisively, thatâs how.
Consider Reeves v. C.H. Robinson Worldwide, which decided the issue of whether vulgar language to which all employees (male and female) are equally exposed is actionable as sexual harassment.
The court made a clear distinction between general, gender-nonspecific swear words, such as shit and fuck, (maybe improper, but not necessarily unlawful) as compared to gender-specific epithets such as bitch, whore, and the granddaddy of them all, cunt (unlawful harassment).
[T]he context may illuminate whether the use of an extremely vulgar, gender-neutral term such as âfuckingâ would contribute to a hostile work environment. âFuckingâ can be used as an intensifying adjective before gender-specific epithets such as âbitch.â In that context, âfuckingâ is used to strengthen the attack on women, and is therefore relevant to the Title VII analysis. However, the obscene word does not itself afford a gender-specific meaning. Thus, when used in context without reference to gender, âfuckâ and âfuckingâ fall more aptly under the rubric of general vulgarity that Title VII does not regulate. âŚ
[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff. ⌠It is enough to hear co-workers on a daily basis refer to female colleagues as ⌠âcunts,â to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: âand you are a âbitch,â too.â âŚ
âCunt,â referring to a womanâs vagina, is the essence of a gender-specific slur. âŚ
The social context at C.H. Robinson detailed by Reeves allows for the inference to be drawn that the abuse did not amount to simple teasing, offhand comments, or isolated incidents, but rather constituted repeated and intentional discrimination directed at women as a group, if not at Reeves specifically. It is not fatal to her claim that Reevesâs co-workers never directly called her a âbitch,â a âfucking whore,â or a âcunt.â Reeves claims that the offensive conduct occurred âevery single day,â and that the manager âaccepted and tolerated that same behaviorâ over her repeated complaints. If C.H. Robinson tolerated this environment, it may be found to have adopted âthe offending conduct and its results,â just as if the employer affirmatively authorized it.
Thus, while general vulgarities are not typically actionable as harassment, severe or pervasive gender-specific words or phrases are actionable even if the words are not specifically directed at one employee, but are merely generally used in the workplace. The aforementioned âc-wordâ is the perfect example.
The takeaway for employers? Words are sometimes not just words, and businesses should respond to complaints about coarse or vulgar language as they would to any other complaint of harassment. An employer cannot just assume that words are harmless and ignore the complaint. And if you do, youâre just being a ⌠.
The day has finally arrived. Itâs time to announce the Worst Employer of 2018.
To remind you, we had four finalists in contention for this ⌠(dis)honor:
The Murdering Manager â company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him.
The Sexist, Racist, Xenophobic, Oh My! â plant manager calls foreign-born employees “terrorists” and women “bitches,” and tells the only black employee that her husband should work in a cotton field with a rope around his neck.
The Supervisor Supremacist â supervisor begins morning staff meetings by saying “White Power” and giving the Nazi salute; when African-American employee complains, he finds himself hanged in effigy.
The Tasering Torturer â company owner disciplines employee by threatening to kill him, lighting fires near him, and repeatedly shocking him with a taser.
The final vote wasn’t close. The winner tallied an astounding 62% of all first place votes.
The Worst Employer of 2018 isâŚ
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The Murdering Manager
I love it when a local boy makes good. This story came from my own backyard, right here in Northeast Ohio. In fact, the top two were both Ohio employers. (Next year, Buckeye State, let’s not try quite so hard.) Rounding out the finalists are The Sexist, Racist, Xenophobic, Oh My! in third place, and the The Supervisor Supremacist in fourth.
What did we learn? That murder bests torture, and they both top harassment of any variety.
This brings 2018’s contest to a close. I hope everyone had a little fun, and learned something along the way.
The contest has already resumed for the Worst Employer of 2019 â Our first nominee, The Philandering Pharmacist (thankfully not from Ohio), has already set a pretty high bar.
While the Access Hollywood tape has been making news for the last week or so, mainly for what Donald Trump said, there is something else that has stood out: Billy Bushâs âroleâ in the whole affair. Bushâs attorney reportedly said, âIf Billy had been passive or responded, âShut the fâ upâ to Trump, Billy would have been out of a job the next day.â This certainly does raise some questions about behavior in the workplace. Is laughing considered a form of agreement with something a supervisor, co-worker or client says? Of course Bush went a step further, he didnât just laugh along, he also made some comments I think we can all agree are inappropriate (especially at his place of work).
I want to come at this from a different angle than The Huffington Post, which attacked Bush for playing the roll of Trumpâs wingman. What do you do, as an employer, when you learn of harassment about which no one has complained?
The short answer is you better do something, and you cannot do nothing. An employee alleging sexual harassment by a coworker must still establish that the employer is liable because it knew or should have known of the harassment, yet failed to take prompt and appropriate corrective action. When does an employer âknow or should knowâ of harassment? Either when: (1) an employee complains or otherwise makes the employer aware; (2) a supervisor or manager witnesses the inappropriate conduct and either reports it or remains silent; or (3) when a workplace is so permeated with harassment that is unreasonable for an employer to claim ignorance.
What steps must an employer take when it learns of harassment, whether or not an employee has complained? These five steps (which Iâve outlined before) are critical:
Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation processâwho will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through.
What you cannot do, however, is bury your corporate head in the sand. Under no circumstances can you, as an employer, ignore harassment that you know about or should know about. It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight. If opt for the âostrich,â all you will see after shaking the sand off your face is an expensive (and possibly indefensible) harassment lawsuit.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Youâve been there. Weâve all been there. The manager who bullies, threatens, yells. The manager whose mood swings determine the climate of the office on any given workday. Who forces employees to whisper in sympathy in cubicles and hallways. The backbiting, belittling boss from hell. Call it what you wantâpoor interpersonal skills, unfortunate office practicesâbut some people, by sheer, shameful force of their personalities, make working for them rotten. We call them toxic managers. Their results may look fine on paper, but the fact is, all is not well if you have one loose in your workforce: itâs unhealthy, unproductive and will eventually undo HRâs efforts to create a healthy, happy and progressive workplace.
Why are some managers toxicâand why should HR care?
The looming question surrounding toxic managers is: Why are there so many? In these days of enlightened management, with so much emphasis on communication, interaction and valuing people, why does this breed still exist?
In large part, itâs because our bottom lines allow it. Companies often donât have a means of rating managers outside of productivity. If a supervisor is churning out the widgets, the questions are kept to a minimum.
“The biggest single reason is because itâs tolerated,” says Lynne McClure, a Mesa, Arizona-based expert on managing high-risk behaviors and author of Risky Business (Haworth Press, 1996), a book on workplace-violence prevention. She believes if a company has toxic managers, itâs because the culture enables itâknowingly, or unknowingly through plain old apathy (see sidebar, “Eight Toxic-Manager Behaviorsâand the Cultures That Nurture Them”).
Certain work situations foster toxic managers. When a company has gone through downsizings, pay freezes or other financial crises, negative management tends to thrive. The emphasis is often on get-tough turnaround, and as such higher-ups often turn a blind eye to crude management as long as the numbers are good. Similarly, employees are less likely to speak up about their rotten bossesâthey donât want to sound like whiners or risk their jobs.
Of course, some people are just going to be miserable to work for no matter what. Yet they end up as managers because theyâre good employees whose companies lack another way of rewarding them. “There are some people who simply should not be promoted to management,” says Deb Haggerty, head of Orlando, Florida-based Positive Connections, a consulting firm that teaches employees how to deal with personality differences. “Just because someone is a brilliant engineer doesnât mean theyâll be a brilliant manager. Yet thatâs too often how a company demonstrates status.”
Some people are miserable to work for no matter what. Yet they end up as managers because they’re good employees whose companies lack another way of rewarding them.
So a person is difficult to work forâis that really an HR concern? Of course it is, and for several reasons. At the very least, thereâs the morale issue. Bad managers tend to infect their departments with bad attitudes. Itâs like a disease: They spread despair, anger and depression, which show up in lackluster work, absenteeism and turnover. Workplace guru Tom Bay has written an entire book about how ideas and moods can aid or sabotage the workplace, Change Your Attitude: Creating Success One Thought at a Time (Career Press, 1998). He believes itâs toxic managersâand the cultures that enable themâthat are at the core of todayâs job-hopping phenomenon. “Turnover is the highest itâs ever been,” he says. “Employees donât feel appreciated.”
Obviously, turnover, absenteeism and uninspired work cost a company money, even if a departmentâs output remains level. But there are other dangers of toxic management. Intense bullying over a period of time can cause emotional damage to employees. Says Haggerty: “In addition to being problems in themselves, toxic behaviors create a hostile work environment and can easily escalate to real violence, harassment and intimidationâall of which end up landing a company in court.” And you can imagine how sympathetic a jury would be toward a company that allowed its employees to be terrorized in order to keep a tidy bottom line.
So how does HR address the situation? Help those that can be helped, and excise those who canâtâor wonât. But first comes whatâs often the tricky part: finding them.
Every company has them: Identify the bad apples.
Toxic managers donât always stand atop your building, wearing a black hat and holding a placard telling you theyâre the bad guys. HR has to do a little detective work, particularly when employees are often loathe to complain about personality differences, no matter how justified. Certainly, there are some warning signs. Check for instance, turnover in every managerâs departmentâare employees transferring or quitting a particular area? If so, thatâs cause to ask further questions.
“Being communicative and being observant is vital,” says Bay, also a former HR director. “Donât wait for massive turnover, thatâs like realizing youâve had a heart attack after youâve died.” At the first increased trickle of turnover or transfers, Bay says, start asking employees whatâs happening.
Have discussions both individually for those who need privacy to speak their minds, and in groups to appeal to employees who like peer support. Listen for key words or notions; donât expect employees to explicitly say they hate their boss. Do ask follow-up questions. For instance, one common flag is for an employee to say their job is fine, but that theyâre under a lot of strain or pressure. Ask them whyâitâs often an interpersonal problem, and a good way for you to get more information.
At Wescast Industries Inc. in Brantford, Ontario, Wayne Phibbs, vice president of HR, uses a monthly “report card” meeting for employees, designed to measure their job satisfaction. “Picture a union person frustrated with his bossâheâs not listening, heâs not helping,” says Phibbs. “Every month thereâs this opportunity to force your leader to be honest. He canât go in there and buffalo people; it wonât work.” Phibbs thinks such open talks and constant forums contribute to his workforceâs high satisfaction levelâeven among the Canadian Auto Workers Union, a group notorious for its scrappy members.
Of course, not all employees are going to be publicly forthcoming. So keep the lines of communication open in as many venues as possible. “Exit interviews are helpful, but theyâre too late,” says McClure. “I wouldnât stop doing them, but you need to do other things.”
One common flag is for an employee to say their job is fine, but that they’re under a lot of strain or pressure. Ask them whyâit’s often an interpersonal problem.
Anonymous hotlines are helpful, and can be set up as cheaply as dedicating one phone line with voice-mail, or more elaborately, through an outside agency that refers issues to HR or an EAP, depending on which is appropriate. “HR has to be careful not to get into counseling issues, and thatâs hard because we know how fuzzy that line is,” admits McClure. HR can also encourage employees to send e-mail. Employees need not use their work account; many Internet sites offer free e-mail with anonymous user names– hotmail.com, for instance).
Using multi-source performance reviews, in which employees can give feedback on their bosses anonymously, is also enormously helpful. At Spring Engineering Corp. in Livonia, Michigan, Tim Tindall, president in charge of HR issues, instituted a 360-degree survey based around “servant leadership,” the theory that the best managers are those who serve their employees. In that mode, the questionnaire covered qualities like listening, empathy, awareness and healing. “The culture in this area [of Michigan] is somewhat adversarial between labor and management. Itâs a long tradition, and one thatâs hard to break, so this helped us get at some issues.” Tindall included himself in the reviews, which were discussed openly, and used to plot next steps.
One word of warning about multi-source reviews: These donât need to wait for a managerâs yearly review, but they do need to be given to all managers in a department. Itâs key, says Haggerty, not to target one particular supervisor, even if turnover and comments have identified that person as problematic.
Finally, talk to your supervisors, says Bay. When you ask a manager how things are going in his or her department, and you hear a lot of “I” rather than “we,” or a lot of blame being dispensed, that can be a flag. So can constant griping about employees in general. Finally, keep your ear to the ground, even if a manager doesnât strike you as toxic. Says Sharon Keys Seal, a Baltimore job coach: “Theyâre not going to treat you the way they treat their workers.”
Put your managers into detox.
So now you know whoâand whatâyouâre dealing with. What do you do next? First comes the confrontation: Sit down with this person, and tell him or her about the problem. Be as specific as you can. Donât couch it in vague terms, like saying the manager has “interpersonal issues.” If the manager is perceived as a bully, say that. If she tends to explode at employees, tell her that. Then explain it must be stopped, and why. Donât come down too hard: This may be the personâs first whiff of a problem. However, do be firm, and tell the manager that future performance will be noted.
Also set a time period for improvement. “Addressing this during a goal-setting session might be good,” advises Haggerty. “It really has to be done in a positive fashion, because those kinds of individuals tend to take criticism and harbor it and nurture it.”
After the intervention comes training. In many cases, the manager simply doesnât have the correct tools, particularly if the personâs background is field-specific rather than managerial. “You have to give them alternatives for their behavior,” says McClure. “Say not only âYou canât do this,â but âYou have to do this.â” If that means they need to go to seminars on employee relations, thatâs what they need to do. If the person is a poor manager simply because heâs in over his head, give him some educational opportunities. Collaborate with the supervisorâask her what she thinks is the problem and what might help. There are seminars and classes for everything from anger management to accounting. Also offer EAP counselingâsometimes a personâs main issues are emotional, alcohol or drug-related, and a good therapist can help.
If, after the intervention and follow-up period, the behavior hasnât changed, HR must decide what to do. If the person has skills useful to the company and is a good worker, you may consider transferring him out of a managerial position but keeping him at the company. Some people just donât work well with others, but may blossom when working in a more narrow sphere of interaction.
If thatâs not the caseâif you actually need to terminate the managerâthis can be done, carefully. Itâs iffy grounds to fire someone strictly for personality issues. You need to define those issues as work-related performance problems, says Harold M. Brody, chair of the Los Angeles labor and employment practice of Proskauer Rose LLP. That means you donât just say a person is a bully, but that the personâs bullying management techniques thwart productivity in the department. Once itâs defined in this manner, you can discharge the person the way you would for any other performance problem. Keep a record of the incidents, document that youâve given the employee time for change, and make the termination. This is actually one case in which, if it should reach a jury, the employer has an advantage. “You get this rare opportunity, if you have the right record, to show you had the guts to go to a manager whoâs producing the widgets but driving everyone crazy, and saying, âYou canât do that, and if you do, youâre going to lose your job,â” says Brody.
Prevent future problems.
Once youâve addressed your current toxic managers, you have to make sure more donât sprout up. To begin with, make sure job descriptions include treating employees in a dignified and appropriate manner. Include behaviors that wonât be tolerated, and hold them accountable for turnover. This not only makes the companyâs stance very clear, but it emphasizes the importance of treating people well. “Behavior has to become part of the job description,” says McClure. “That way you can no longer say that manager X is a great manager because they really produce, but theyâre terrible with how they treat their people. That way, manager X can no longer by definition be called a great manager.”
Build in pay increases or title changes to reward good work without forcing people to assume positions they’re not suited for or wouldn’t enjoy.
Once the job description includes behavior, HR can effectively reward or discipline managers through performance reviews. “Tell them theyâre going to be evaluated, compensated and possibly disciplined based on their ability to effectively meet HR objectivesârelating to employees and managing them in positive ways,” says Brody. Although Phibbs of Wescast says he uses performance ratings more as a discussion tool than as a punitive pay measurement, if a manager gets poor reviews and doesnât improve, heâd take the next step. “If someone kept messing up, we wouldnât give them an increase.” Adds McClure: “Make it a pocketbook issue; that gets their attention.”
Finally, make sure management isnât the only way up to advance in your company. Build in pay increases or title changes to reward good work without forcing people to assume positions theyâre not suited for and wonât enjoy.
Youâve been there. Weâve all been there. But if youâre in HR, you have the power to help toxic managers, their employees â and ultimately, your company.
Workforce, August 1999, Vol. 78, No. 8, pp. 44-46.
Of course, some people are just going to be miserable to work for no matter what. Yet they end up as managers because theyâre good employees whose companies lack another way of rewarding them. “There are some people who simply should not be promoted to management,” says Deb Haggerty, head of Orlando, Florida-based Positive Connections, a consulting firm that teaches employees how to deal with personality differences. “Just because someone is a brilliant engineer doesnât mean theyâll be a brilliant manager. Yet thatâs too often how a company demonstrates status.”