The Equal Opportunity Harasser
 
Bad Management at it’s Worst
 
 
One of the backside realities of case law in Discrimination Cases is know as the Equal Opportunity Harasser.  It is based on the 1998    U.S. Supreme Court Case of Joseph Oncale vs. Sundowner Offshore Ser­vices, Inc.
 
In this Supreme Court Decision, the basic players were a Macho male He-Man of a rough and rowdy nature, and a small 5′4″ male co-worker who became the brunt of Mr. Macho’s attentions, disdain and pranks.  To say the Mr. Oncale was picked on understates the situation completely, and threats reached all the way to rape.  Our macho guy loved to bully and demean Mr. Oncale and it only got worse when Mr. Oncale complained to management. 
 
This case establishes the concept of Sexual Harassment being inclusive of Male — Male, Female — Female, as well as heterosexual pairings. 
 
The backside of he law is the concept of the Equal Opportunity Harasser.  Had Macho man been abusive to underlings of both genders–then the sexual component of Sexual Harassment would have been nullified. 
 
In parallel situations a manager who is abusive of persons of all AGES, may avoid being charged with age discrimination.  And the same with abuse to persons of multiple races, national origins, and varying ability levels. 
 
As one young man I was explaining this concept to so eloquently stated  “This manager is just an A**hole”.  He was exactly right.  Unfortunately there is little you can do within Discrimination Law with managers of this description.
 
But in the case of Sundowner Offshore Services Inc., it was an all male crew, so Mr. Macho Bully and his company were taken to court, in fact to several courts, and much to Mr. Oncale’s surprise and disfavor, ended up with a precedence setting case decided by the U.S. Supreme Court.  Disfavor, yes, Mr. Oncale just wanted to be left alone to do his job, and he did not wish upon himself the notoriety of being involved in a case at this level.
 
Now the last thing I want to be seen as approving, is bad management of this nature.  I would much prefer that managers and employees get along in a humane and respectful manner.  To hide behind a concept such as the Equal Opportunity Harasser, will not serve you or your company well at all.  You may stay out of court, but that is the least of your worries when you treat your employees badly. 
 
More information on Harassment and Sexual Harassment can be found at:  http://www.sexualharassmentresources.comBill Barger
Barger Specialties LLC
 

THE AFFIRMATIVE DEFENSE:
 
SOMETHING FOR EVERYBODY
 
Some might consider the Affirmative Defense to be a Dual Edged Sword.  It is sharp–well focused and can hurt you really badly, if you are either unaware of the Affirmative Defense–or ignore it. 
 
Let’s shed some light on the duality of the Affirmative Defense by phrasing what students sometimes call the “Multiple Guess” question.
 
First The CASE:
 
An Employee charges management and the Corporation (or Educational Institution, or Government Agency) with Sexual Harassment.  You are to assume that this is a viable, valid and extremely damaging case. 
 
Your task is to determine what parties are liable for payment of damages in this case.  You are to choose the best two answers once you have chosen your role:
 
Roles:  (Circle one role)
 
·        Employer
 
·        Employee
 
Consider your ROLE and Choose two from the following four selections in answering WHO you wish to be liable for payment of substantial damages.
 
1.      The First Line Manager, Upper Management and the Corporation
 
2.   Upper level Management
 
3.   The First Line Manager
 
4.    Neither the Corporation nor management
 
 
 
Indeed it is within the scope of the Affirmative Defense to allow ALL
of the above answers depending on the Role Chosen. 
 
From the Employer perspective:  If the employer has “Walked the Walk” and “Talked the Talk” on Discrimination Law, then the employer may very well be in position to sell the court on the idea that they deserve to be awarded The Affirmative Defense.
 
Corporations, Educational Institutions, Government bodies, Churches, etc. who are not up to date on their Discrimination Policies, programs and training…need not apply!! 
 
All types of Discrimination are included: 
 
·        Race
·        National Origins
·        Age
·        Religion
·        Disabilities
·        Harassment
·        Sexual Harassment
 
From the Employee perspective–you must have followed all internal recommendations and procedures, basically having made a good faith effort to handle the issue within the employment venue.    Having done that, you can proceed with your case with the ultimate viability of your case hinging upon whether or not the Employer can claim The Affirmative Defense.  If the court awards The Affirmative Defense, you still have a case, but your ability to collect the big $$$$ has been greatly compromised. 
 
So it behooves everybody to know and understand what is and what is not discrimination.  And if discrimination is present, then The Affirmative Defense or lack there of will have great impact on WHO gets to pay the damages, and just how lucrative the damages may be.
 
I think it is safe to say, that all organizations would love to request the court’s awarding The Affirmative Defense.  My research has shown that many, if not most organizations would not have a substantial enough and comprehensive enough program in place to be able to convince the court of their worthiness of being awarded The Affirmative Defense.   The worst-case scenario might be having an employee that understands Discrimination Law and The Affirmative Defense better than the management of the organization.  Such an employee knows what steps need to be taken to strengthen their case while the Organization works its way out of qualifying for The Affirmative Defense. 
 
More information on Harassment and Sexual Harassment is available via EBooks and Blogs at http://www.sexualharassmentresources.com 
 
Bill Barger
Barger Specialties LLC

 

RETALIATION
 
Tempted?  THINK AT LEAST TWICE!!
 
Retaliation can come in a lot of different shapes, and sizes, so let’s tune our discussion to Retaliation in the world of Discrimination Law.
 
Yes Discrimination:
 
·        Age Discrimination
·        Disabilities Discrimination
·        Harassment
·        Sexual Harassment
 
When an employee comes to management to talk about discrimination, particular care must be taken to listen intently, and respectfully to the views of the presenter.  To do other than that can lead to an ever-worsening Human Resources Nightmare. 
 
The very last thing you want to do is:  retaliate. 
 
 
Yes, I did want to scream that word out, but sometimes small, subtle pronouncements can catch your eye and seize your brain cells more effectively than shouting.  Sure it’s tempting; nobody likes to discuss the negative subject of discrimination.  But DON’T THINK IT, DON”T PLAN IT, AND DON”T DO IT!!!!  In short:  DON’T RETALIATE!!
 
Simply put retaliation damages you in several ways.  For the sake of this discussion, lets assume that the worker does indeed have a valid case of one of the forms of discrimination listed above.  If you retaliate against that worker, in just about any form, after they have initiated a discussion of discrimination, you will likely do the following:
 
·        You vastly improve the employee’s case

·        You lengthen the window of opportunity as relates to EEOC submittals
 
·        You make the employee’s case easier to win, and more expensive to settle.
 
 
What does the U.S. Supreme Court say about retaliation?  Let me give you this reference case for your consideration. 
http://www.supremecourtus.gov/opinions/05pdf/05-259.pdf
 
This is one of the latest findings of THE court in the arena of harassment and sexual harassment. The court in its findings allows that the scope of consideration on Retaliation, is indeed wider and broader than the scope of consideration on discrimination law.  The court specifically points out the writings of the Congressional writers of Title VII and allows that the difference in the writing enlarges the field of play in retaliation matters.
 
Of particular interest is the following:
 
·        “We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment, or occur at the workplace.
 
·        We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant.
 
·        In the present context, that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”
 
Reference Case:  Burlington Northern Sante Fe Railway Co. v. White
Pages 1 and 2 of the Opinion of the Court, June 22, 2006 :  http://www.supremecourtus.gov/opinions/05pdf/05-259.pdf
 
Retaliation is very serious business.  Most of us are familiar with the teachings that impart the thought:  “Treat Others as You Wish to be Treated.”  OK , I rewrote that, to be religiously sensitive shall we say.
But if you caught my drift, then let me suggest an Eleventh Commandment:
 
#11:   Thou Shalt Not Retaliate!!
 
 
More information on Harassment and Sexual Harassment can be found at
http://www.sexualharassmentresources.com
 
Bill Barger
 
Barger Specialties LLC  Bill Barger Barger Specialties LLC  Bill Barger Barger Specialties LLC

 
 
 
  Bill Barger Barger Specialties LLC    

 Bill Barger Barger Specialties LLC    

 

 

Ethics in Business Communications.

 

Privacy issues around words such as “Personal”, “Private”, “For the Eyes of Department Management Only”, “Privileged” and other words requesting Privacy in communications.  

It is incumbent upon managers in business, education, and industry today, to be very sensitive and forthright in their communications, and in response to privacy requests regarding communications from their employees.  To be less than totally forthright can result in some very unsavory results from disenfranchised employees.

Let’s face it.  Management is about decisions, and decisions as to what you do with “Private” communications can have long ranging results.  If the communications relates to discussions of harassment and/or sexual harassment, or other discrimination issues, some very difficult decisions must be made.  As any investigation of these matters will result in multiple persons being made aware of the situation, it is probably best for the manager to stop the party divulging the information, and make them aware of the aspects of the process of investigating the claims which will likely not be supported in the concept of “privacy.”  

Let the accuser make the choice, continue without privacy being assured, or decide not to continue with the statements being made.While the issues of privacy in discussions of harassment and sexual harassment are quite clear, there are other areas of management communications much less clear, but still problematic.  

Matters relating to personnel issues might be one such case.  An employee complaining about the actions of another employee, might request “privacy”.  The manager in this case should try to find other means of substantiating the claim without divulging the identity of the complainant.  If this will not be possible, then another conversation with the complainant is indicated, in which you might indicate that a problem has been identified, but taking action on that problem will probably implicate the complainant as the one that divulged the issue.  Then let the complainant decide whether “privacy” or “solving the problem” will be the course of events that best suit the complainant’s needs.   In many other privacy matters, the singular choice should be to honor the request for Privacy.  Totally!!  Completely!!
To do less than that could take several negative paths.  Certainly the employee, whose “privacy” request has been abused, will seek ways to get even.  Any practices of the agency or group that may be less than correct, or possibly even illegal, will make good means of getting even if the disenfranchised employee chooses. If it is in a case relating to any of the forms of discrimination, including harassment and sexual harassment, then abuse of the privacy issues, can easily be considered retaliation.  One article I recently read indicated that retaliation cases are some of the easiest discrimination cases to win.

As a manager in Business, Education or Industry, take very serious consideration as to any and all decisions you make when “privacy” is an issue on the table.  

Bill Barger
Barger Specialties LLC

Information and resources on Harassment and Sexual Harassment are available through my web site at:  http://www.sexualharassmentresources.com

 

The Ethics of Executive Compensation
 
Would you love to have a means of having your friends and closest work buddies, determine your salary?  And would you be likely to help those friends themselves increase their salaries?  How about if in helping those friends, you might also help yourself?
 
Such is the apparent situation in Executive Compensation.  Many of today’s Executives of mid-size to large firms have what are known as “associations”.  These “associations” deal with interrelationships with other entities, be they other company’s boards of directors, or the actual individual members of those Boards.  “Associations” of upper echelon executives and members of the Boards for a company with which I have much experience, numbered from a few dozen to in excess of 400 in this company.
 
Add to that the fact that Companies love to run comparisons on the salary levels of the competition.  So the CEO of “my” company with his/her over 400 “associations” can vote for a pay raise for any of the CEO’s on whose board he/she has a seat, and in affect be providing an upward push to his/her own salary, both through the “relationships” and the competitive analysis.
 
Oh, and don’t just compare salaries.  Check out the other benefits.  Funny how you and I make $30,000 a year, we are hopefully paid $30,000 a year. But an Executive getting paid in excess of $1,000,000 dollars per year will pull down many multiples of that in stock options and benefits.  Kind of sounds like our members of the Congress of our Federal Government!!  Ever wonder why a Congressman will willingly spend millions of dollars to get elected to a position that pays less than $200,000?  Sure, much of those millions he/she spends will be “our” money, but for the true picture don’t look at the salary, look at the benefits, the retirement, options, etc. 
 
As always, more information on Harassment and Sexual Harassment is available at http://www.sexualharassmentresources.com/.   Hope to see you there. 

 

Management Responsibilities
 
 Once an individual assumes a management role, His/Her responsibility is now to the entire group of employees on his/her staff, which we will refer to as the team.   As a general rule, it would not be uncommon for the new manager to have prior work or social relationships with some of the team members that now find themselves under the management umbrella of the new manager.
 
Now delving into these potential work or social relationships, we are talking about church, PTA, Park and Recreation team play and that kind of thing.    We should exclude from such casual consideration all possible dating and sexual situations.  If the manager has had a prior dating type of relationship with one or more of his present employees, then Human Resource involvement is advised to prevent potential problems in the realm of harassment or sexual harassment claims. 
 
Now that the manager has a TEAM to be responsible for, He/She should make it a good habit to review all complaints or negative actions against any employee, prior to taking any action on that complaint or negative action.  This cannot be over emphasized if the result will be a negative employment action, such as removal from a job, a lesser raise than the group average, or negative notes on evaluations or personnel folders.
 
These recommendations are aimed at preventing potential claims of harassment and sexual harassment.   The disadvantaged employee may potentially be a member of a protected class of individual, in which case the negative employment action takes on great significance. 
 
More information on Harassment and Sexual Harassment can be found at
http://www.sexualharassmentresources.com
 
 
Bill Barger
Barger Specialties LLC  
 

 

CONFIDENTIALITY

Must You or Can’t You Honor It?

Today, we look at Confidentiality as an issue in harassment and Sexual Harassment environments. It literally is a dual edged sword, one that has strict considerations that may well be a matter of the environment in which confidentiality is considered.

Let’s consider confidentiality in the environment of the harassment and sexual harassment investigation process. If the victim reports an issue, and requests confidentiality–we have a problem. Even the simplest investigation, will involve the victim, the perpetrator, and the investigator in the “need-to-know” flow of information. If it goes past the investigation stage, additional people will join the “need-to-know” envelope. About the best you can promise a victim, is that you will limit the information to the “need-to-know” persons. DO NOT PROMISE CONFIDENTIALITY as the odds are that you will not be able to maintain it.

Outside of the investigation of harassment and sexual harassment issues, confidentiality can by a different issue. If information is considered confidential, privileged or private and you share that information in a manner that further damages a person claiming harassment or sexual harassment, then you likely have crossed a line that will be considered retaliation for the victim having claimed harassment or sexual harassment. Retaliation is expressly forbidden by the EEOC Guidelines.

You can read more at:
http://www.sexualharassmentresources.com

Bill Barger
Barger Specialties LLC

 

Justice NO…Foul Play in the Duke Lacrosse Players Case

The case of the Duke Lacrosse Players has finally ended with Justice being served. But not before over zealous local members of the legal community had a field day with the emotions and well being of the Lacrosse Players, their families, the University and the public at large.

In too many cases, there is a not well thought out rush to protect the image and financial well being of a Company, Agency, or Institution. But in this case it appears to be a case of ego, and the playing of the race card. The University’s name was blemished, the players and their families names were trashed in a rush to support the false claims of a person of compromised reputation. Did the players make some bad decisions? Sure, not much good can come from bringing such entertainment into your party. But should their reputations have been thrown away in prosecuting them in this way?

The players finally won their day in court, but the experience they have lived through will stick with them the rest of their lives.

It is incumbent on all of us, to realize that the truth is not always obvious, and in cases of harassment and sexual harassment, we need to leave no rock unturned in our investigations. We have to be POSITIVE of the facts before we label any person a Sexual Harasser.


You can read more at:
http://www.sexualharassmentresources.com

Bill Barger
Barger Specialties LLC

Justice for Mr. Reid–The Shoe Bomber
 
Remember the guy who got on a plane with a bomb built into his shoe and tried to light it?   Did you know his trial is over?
   Did you know he was sentenced?
   Did you see/hear any of the judge’s comments on TV or    Radio?    Didn’t think so.