How to avoid harassment and retaliation cases.
Much has been written about employment discrimination, but one aspect still merits additional attention and special advice --the problem of retaliation and harassment in the workplace. The following scenario points to the wide-ranging ramifications of this problem and underscores why management must handle such incidents promptly and properly.
Wallace, a Jewish chemistry technologist, had worked in the laboratory for two years, all the while ignoring antisemitic remarks repeatedly made in his presence by a few co-workers (see Weiss v. U.S. in references below). Although the comments bothered him, he tried to brush them off as bad jokes. One day, however, a technologist made a particularly vulgar antisemitic remark at the end of the chemistry section's staff meeting.
Noticing the shocked look on several employees' faces, the supervisor immediately demanded that the technologist apologize. After the meeting, the supervisor promptly took further action. In Wallace's presence, she warned the offender that such rude and discriminatory comments would not be tolerated. She also assured Wallace of her support. Finally, at the supervisor's request, the co-worker sent Wallace a written apology.
The next day, Wallace was obviously distressed when he arrived for work. Something had snapped. His mannerisms conveyed dissatisfaction as he told his supervisor that yesterday's disciplinary action was totally inadequate. He then went directly to top management and demanded that the offender be suspended and the supervisor fired.
Management rejected these overt demands but promptly called a meeting to warn employees against making racial or religious slurs. The comments stopped--but harassment of Wallace had just begun.
Angry that an employee had complained about her supervisory abilities--especially when she had supported him--the supervisor embarked on an all-out campaign to make Wallace's life miserable. She started documenting his every move. Evidence of a decline in productivity finally led to his dismissal.
Jobless, feeling demoralized and mistreated, Wallace in turn retained an attorney. A lawsuit soon followed against his former employer for damages, back pay, and reinstatement.
Court testimony from lab employees revealed that the supervisor glared at Wallace with open hostility whenever she saw him. She missed no chance to demean his performance, even in front of others. Moreover, Wallace received inappropriate and unreasonably difficult assignments without enough time or assistance to complete them. The supervisor also blamed him for result-reporting delays beyond his control, such as instrument breakdowns.
At the time he was fired, Wallace had amassed quite a file of highly critical reports, performance appraisals, and warnings about his deteriorating performance. Ironically, while this file was supposed to document legitimate reasons for the dismissal, it had just the opposite effect in court. It was seen as fabrication, proof of the supervisor's anger and her systematic, vicious harassment of Wallace.
Two other court cases illustrate the seriousness of name calling as a form of harassment. In Fekate v. U.S. Steel Corp., 353 F.Supp. 1177 (W.D. Pa. 1973), the taunts focused on the plaintiff's Hungarian heritage. In Howard v. National Cash Register Co., 388 F.Supp. 603 (S.D. Ohio 1975), a black security guard, subjected to offensive and prejudicial treatment by co-workers, filed suit. Of the 32 racial complaints listed, 12 involved references to black people, jokes about black people, and references to the employee's status as the only black guard on the force. Racial epithets were used daily, and a rope slung over an overhead pipe was knotted in a hangman's noose.
It is interesting to note that the defendant in Fekate v. U.S. Steel won. The plaintiff was deemed "too sensitive,' and the court ruled that management could not be held responsible for employee actions. Two years later, when the tide started to turn in such cases, the plaintiff in Howard v. National Cash Register won.
These examples point up the need for management to incorporate appropriate education and training into supervisory orientation programs and subsequent "refresher' in-services. Simply put, the law protects employees from retaliation. And contrary to what many directors, managers, and supervisors believe, employees are protected even if they have not yet lodged a formal complaint with outside authorities.
Management can be held guilty of retaliation if it takes action against employees who 1) express opposition to what they believe are discriminatory employment practices, 2) actually file discrimination charges, 3) participate in fair-employment agency investigations, or 4) testify in court or at agency hearings.
The following guidelines have proved most useful to us in carrying out our institution's affirmative action program:
Be careful about any action taken. It may be no more than a normal disciplinary measure for an actual infraction of the rules. But when taken against an employee who is part of a group that may be the target of discrimination, the action can easily be misinterpreted by courts and government agencies as constituting further discrimination.
Do not limit intervention to "warning' employees against making racial or religious slurs. Confront the problem head-on. Interview the principals and take written statements from other employees. Get to the bottom of the situation and correct the problem immediately, in writing.
Take appropriate action right away. Management should act as soon as it becomes aware of discriminatory behavior, either through complaints from those who believe they are being discriminated against or through any other channels. Transfer, demotion, and dismissal are valid options if a serious problem is shown to exist and is well documented. It is important that supervisors keep the lab director and lab manager informed of all such problems and the recommended courses of action. Courses of action should also be discussed with and endorsed by the institution's human resources department.
Management should proclaim anti-discrimination views. Make sure all employees know that management is serious about opposing harassment based on race, religion, national origin, sex, or age. Tell the staff how to file a complaint and with whom.
Follow up if management's investigation is inconclusive and no decisive action can be taken. Make sure grudges are not being settled behind management's back. Remember, the organization is most vulnerable to charges of retaliation in the post-complaint stage, and top management can be held accountable.
A policy of paying attention to personnel interactions and taking prompt action when necessary is in everyone's best interest.
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|Author:||Martin, Bettina G.; Comedy, Alan V.|
|Publication:||Medical Laboratory Observer|
|Date:||Jan 1, 1988|
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