Category Archives: Hostile Work Environment

Responding to Violence in the Workplace – A “Catch 22” for Employers

Contributed by Michael Wong, August 10, 2017

Workplace investigation

The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplace, as disciplining or terminating the problem employee can result in a legal claim as well.

In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 942 (9th Cir. 2015), the employer, PCC, terminated the plaintiff, Thomas Mayo, after he made threatening comments to three co-workers that he was going to bring a gun to work and start “shooting people.” After the threats were reported, the employer took the proper precautions by immediately suspending the plaintiff, barring him from company property, and notifying the police. The police took him to the hospital for medical treatment on the basis that he was an imminent threat to himself and others.

After taking three months of leave under the FMLA and Oregon’s equivalent state law, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, the employer terminated Mayo. Plaintiff then sued PCC alleging he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and state law.

In Mayo v. PCC, the United States Court of Appeals for the Ninth Circuit held that an employee who made serious and credible threats of violence against coworkers is not a qualified individual with a disability under the ADA or Oregon’s disability discriminatory law. In granting summary judgment to the employer, the Court held that an essential function of almost every job is the ability to appropriately handle stress and interact with others, and that an individual is not qualified and cannot perform the essential functions of the job if he or she threatens to kill co-workers – regardless of whether such threats stem from a mental condition or disability.

What should employers do?

Against this potential liability minefield, an employer should develop an effective written workplace violence preventative policy. For those who already have policies in place, it would be a good idea to review your policies and practices with your legal counsel to make sure that these issues and any potential concerns are properly addressed.

Ask yourself the following questions to see if your policy needs to be modified in light of the recent lawsuits:

  1. Do your policies advise employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace?”
  2. Do you have a statement that there is “zero tolerance” regarding threats or acts of violence?
  3. Do your managers/supervisors know what steps should be taken if there is a threat, complaint of bullying or violence?
  4. Have your managers, supervisors and employees been trained on identifying signs and symptoms of behavior which may predict potential violence (erratic behavior; comments regarding violence, homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; evidence of violent tendencies or abuse of alcohol or drug use)?
  5. Have your managers and supervisors been trained and regularly reminded about the importance of good documentation and dangers of bad documentation?

No Bullies Allowed!

Contributed by Noah A. Frank

Beginning January 1, 2015, California employers (with 50 or more employees) must provide anti-bullying training to supervisors within 6 months of assuming a supervisory role, and during biannual anti-sexual harassment training.  California broadly defines workplace bullying as: “Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”  This may include:

  • Repeated infliction of verbal abuse (e. g., derogatory remarks, insults, and epithets),
  • Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or
  • Gratuitous sabotage or undermining of a person’s work performance.

There is no question that bullying has negative impacts in the workplace.  It lowers morale and productivity, and may lead to union organizing activity – especially when the bully is a supervisor.  Tennessee is the only other state with an anti-workplace bullying law (which applies only to public employers); and all states (except Montana) have school anti-bullying laws to protect students.  Many other states require or highly encourage some form of employment anti-harassment training (including Colorado, Connecticut, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Texas, Utah, Vermont, Washington, and Wisconsin).

However, California’s law signals a dangerous shift in human resources management.  While there is no private cause of action, an employer that fails to incorporate anti-bullying into their biannual training will certainly see this as part of a discrimination/harassment/retaliation claim – and worse, will likely see claims for deficient training and enforcement.

Practical Advice

Audit your policies to ensure a productive workplace, free of illegal and otherwise unproductive harassment and discrimination.  For example:

  • Open Doors: provide employees with a retaliation-free mechanism to report concerns and have open dialogue with management.  Make sure they know about it.
  • Stop bullying.  If you don’t do it now, a new union may form tomorrow.
  • Establish appropriate conduct policies and enforce them.
  • Train supervisors to recognize and correct unproductive and inappropriate conduct.
  • Take proactive steps, such as moving, disciplining, or terminating bullies.

But use caution: implementing rules only after concerted protected activity (“once it is too late”) could also lead to unfair labor practice charges (see, Care One at Madison Avenue, 361 NLRB No. 159 (12/16/2014), discussed in our February 3, 2015 blog).  Thus, seek the advice of counsel when difficult or compound situations arise.

General Contractor Held Liable for Hostile Work Environment Against Subcontractor’s Employee

Contributed by Noah A. Frank

Title VII prohibits employers from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual’s race, color, religion, sex, or national origin.  Other state and Federal laws prohibit discrimination based on age, disability, veteran status, and other characteristics.

Recently, the Sixth Circuit Court of Appeals held that a general contractor could be liable for a hostile work environment directed towards its subcontractor’s employee under a joint employer theory.  EEOC v. Skanska USA Building, Inc., No. 12-5967 (6th Cir. Dec. 10, 2013). The court found the general contractor supervised and controlled its subcontractor’s employees’ daily activities, directed their performance, determined their hours and daily assignments, assigned their supervisors, handled complaints, held meetings regarding disagreements, and did not consult the subcontractor’s owners regarding its employees’ complaints.  In essence, the court found that the subcontractor generally did “nothing” with respect to his employees and was a “nonentity.”  The court noted that the subcontractor’s African-American employees were allegedly called a variety of hostile names and epithets including the “n-word,” and were subjected to graphic depictions, including a picture in the port-a-potty of a Caucasian person shooting an African-American person.  The offenders included the general contractor’s employees, other subcontractors, and third-parties.  The victims allegedly reported the conduct to the general contractor, which did nothing to resolve their complaints, and eventually directed the subcontractor to fire them as a “poor fit.”  The court held that there was enough evidence to support a determination that the general contractor jointly employed the subcontractor’s employees, and therefore could be liable under Title VII.

While this case is an example of an extreme hostile work environment, its impact is directly applicable to all employers, and shows a changing tide in EEOC practice and discrimination jurisprudence.  Under Title VII, employers are responsible for protecting their workers from other workers, customers, and third-party vendors.  Under the joint employer theory, it is conceivable that a court could find an innocent general contractor or borrowing employer responsible for discriminatory conduct and hostile comments made towards another at their workplace.  Further, while this case addresses a construction general contractor’s responsibilities, it is likely that the EEOC and state agencies would attempt to extend this argument to borrowing employers (including those using temporary staffing agencies) and others using subcontractors.

Practice pointer for best practices:

Employers should ensure that subcontractors and independent contractors have, maintain, and enforce EEO policies, including anti-harassment and anti-retaliation policies. These policies should be incorporated by reference into any contract for services.  In light of the recent decision, employers should ensure that they not only have written policies and procedures in place to handle discrimination, harassment and retaliation issues, but must also carefully train all employees, supervisors and managers on the need to better identify, prevent and remediate such issues.

Employer’s Prompt Investigation and Action Prevents Liability For Retaliation and Co-Worker Harassment Claims

Contributed by Jon Hoag

Once again, the court has reiterated that employers can avoid liability by promptly investigating and remedying claims of harassment.  In Jensen v. Styrolution Am. LLC, Judge Guzman of the Northern District of Illinois dismissed a retaliation and harassment complaint against the employer based on proof that the employer took prompt remedial action when it learned about allegations of harassment.

Jensen claimed that he was harassed by a male co-worker, Hefele.  Jensen reported the incidents to his immediate supervisor, who intervened.  Jensen admitted that the harassment would stop for a while, but he claimed it would eventually continue.  Jensen complained to his immediate supervisor when the harassment began to escalate and the complaint was communicated to upper management and human resources.  Human resources conducted an investigation and determined that both individuals had violated the company’s policies.  After the investigation, the employees were assigned to work different shifts and did not have any further dealings or interactions.  There were no further complaints of harassment. 

The court found that the employer properly intervened and took reasonable measures to put a stop to the harassment.  When the harassment picked back up and escalated, the supervisor reported the matter to upper management.  Most importantly, the employer conducted an investigation and took remedial action.  The court stressed that a prompt investigation is the hallmark of reasonable corrective action.  Furthermore, the employer’s findings through its investigation showed that the employer’s reason for terminating Jensen – violation of company policy – was honest.  As such, Jensen could not establish that he was retaliated against for complaining about harassment.

The courts do not require employers to make wise, accurate and well-considered decisions to avoid liability when making adverse employment decisions (although it doesn’t hurt).  The courts will look to see if the employer conducted a prompt and reasonable investigation to show that the employer’s lawful reason for the adverse action was honest.

What Do You Do When The Schoolyard Bully Is Now Your Employee?

Contributed by Allison Chaplick

Just because you employ adults, does not mean that your employees will always act like adults.  And, no, I am not talking about your employees who walk around in skinny jeans, wool hats (even though it is the dead of summer), tattoos and colorful hair.  I’m talking about the bullies. 

Bullies can bring a serious threat to the workplace.  First, no one likes a bully.  Second, employees who are victims of bullying are not shy to file a lawsuit against their employer because of the bullying.  In fact, recently a woman won more than $1 million dollars in a settlement against her former employer because of bullying. Potential common law causes of action for allowing bullying to take place at work could include intentional (or negligent) infliction of emotional distress, and negligent hiring or negligent retention.  Unlike claims filed under Title VII for discrimination and harassment, there is no cap on what an employee can recover from the employer. 

Just like schools, employers should have a zero tolerance policy that prohibits bullying.  Chances are, you already do, you just call it something else.  First, take a look at your employee handbook, specifically the Anti-Discrimination/Harassment policy where you prohibit “name-calling, letters, gestures, ethnic slurs, racial epithets, and other conduct” that is aimed at a particular employee.  Now, look at your Codes of Conduct policy.  Do you prohibit “fighting or using obscene, abusive, or threatening language or gestures”?  How about advising your employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace.”  Combined, these policies should be your anti-bullying provisions, and you should enforce them just like any other policy: consistently. 

So, what do you do when a victim complains to you about bullying?  Just as if you would investigate any complaint of unlawful discrimination or harassment, you should take all complaints and incidents of bullying seriously, separate the parties if necessary, and start investigating and documenting.  If necessary, take prompt remedial action against the bully by issuing a written warning, suspension or terminating that bully!

Horseplay In The Workforce Ain’t What It Used To Be And It Could End Up Costing You Big Bucks!

Contributed by Heather Bailey

A Louisiana jury was correct when it found that a survey crew instrument man at an engineering firm was sexually harassed by his supervisor’s boss who happened to be a male as well.  Cherry v. Shaw Coastal, Inc., 5th Cir., No. 11-30403, 1/19/12.  The harasser started off by brushing the employee’s hair, then he would ask the employee to take his shirt off and to wear revealing clothing.  The behavior escalated to inappropriate sexual text messages, repeated touching of the body and hair, and an invitation to sleep over and wear his underwear.  There was one occasion where the harasser touched the employee on the buttocks.  During this time, the employee repeatedly told the manager that he was uncomfortable and that the manager should keep his comments to himself.  

The employee’s supervisor knew his boss was acting inappropriately and complained twice to two different managers who were overseeing the project they were all working on together.  Nothing was done and the managers never informed human resources of the complaints.  After the third compliant when the employee finally complained to the same management team, the manager questioned that the harasser’s conduct was probably just “horsing around.”  After yet another complaint, management finally removed the employees from working on the same crew.  However, the harasser was still able to make the employee feel uncomfortable so he escalated his complaint.  Finally, management informed human resources, but not before questioning the conduct was just “horsing around” again.

Human resources conducted an investigation yet concluded the issue was one word against the other and took no further action.  Again, the company took no further action when the employee complained the harasser was then retaliating against him for complaining.  The employee then resigned because the company failed to take any action and he could no longer take the harasser’s treatment.

The court said the jury was right that there was same-sex harassment here based upon the manager’s vulgar sexual text messages which propositioned the employee, an offer to stay at his house and wear his underwear, and the repeated offensive physical touching and caressing which included a single instance on the buttock.  The court said all of this conduct was “severe and pervasive,” which is a test for proving sexual harassment.  

The lesson learned here is that the company was liable due to its failure to take prompt remedial action. It had a policy that required management to report any complaint to human resources, but management didn’t follow that policy here and even suggested that the inappropriate conduct was just horseplay.  When management finally followed the policy, human resources – despite having documented proof and a superior as an eye witness — did nothing. 

Spring Cleaning Tips

  • Update the company’s Anti-Harassment and Discrimination Policies, and if you don’t have one to update, create one immediately!
  • Train all employees on the do’s and don’t’s of sexual harassment and discrimination, including management on what to do when an employee complains or when management sees inappropriate conduct taking place. 
  • Review the company’s complaint and investigation procedures to ensure complaints are taken seriously and investigations are conducted effectively with a focus of remedial action when necessary.

We recommend you contact your employment counsel to ensure your policies and practices are tuned up.

Do you have a Toxic Mary?

Contributed by Julie Proscia

Every business has one, it is inevitable. I like to call this person the Toxic Mary of the organization. Toxic Mary may do an average job or even a good job. Generally speaking, the person has been with the organization a few years and his or her annual performance reviews always meet expectations. So you keep them on. BUT, and it is a big but, Toxic Mary constantly breeds discontent. He or she is the first person to gripe about working extra, the first person to complain about pay and the first person to use ALL CAPS and BOLD in e-mails to express discontent.   

Toxic Mary is just that…toxic. He or she poisons the morale of the organization and is more dangerous than a computer virus or a bad economy.  Too often employers let this behavior slide because they cannot put a finger on the exact way to classify the behavior and the employee is “doing their job.”  In reality, with this attitude, Toxic Mary is not doing his or her job and you deserve better. As an employer you cannot make employees love their jobs or turn their jobs into lifelong passions, however, repeat after me, it is ok to require that employees do not destroy your organization with negativity.  Again, you deserve a better caliber of employee.

One of the most progressive things that you can do for your organization is to discipline and terminate Toxic Mary. First, document and bring the behavior to Toxic Mary’s attention. What are the buzz words you ask? Fostering an unprofessional and un-collegial work environment and insubordination. Give Toxic Mary examples of this behavior and let he or she know that it is unacceptable and that additional unprofessional behavior in the future will lead to disciplinary action; up to and including termination. If it happens again, first call your friendly L&E attorney, then either proceed to discipline or terminate Toxic Mary. The difference in the office will be noticeable. Too often employers feel trapped and assume that behavioral issues must be tolerated and only production issues can be addressed. That is not the case. Poor production can be coached and counseled to change – poor attitude cannot.