Your Employee Did What?? – HR Lessons Learned From Real Cases

You really can't make this stuff up. These are some examples of actual employment cases and lessons that can be learned from them.

The $180,000 Bag of Chips

A diabetic employee was fired because she ate a $1.39 bag of chips before paying for it. She then filed a disability discrimination complaint with the EEOC, claiming she had eaten the chips because her blood sugar was low and she was not able to pay for the chips first. The employer settled the claim for $180,000.

Lesson learned: Employers certainly are entitled to have policies regarding theft and should enforce them. However, common sense should prevail and policies should not always be applied as if the circumstances are always "black and white." Even in situations such as these where an employee is accused of violating policy, an employer should not disregard whether an employee's disability was the cause of the violation.

Men Harassing Men

A car dealership paid $2 million dollars to settle a same-sex harassment claim brought on behalf of 50 male employees. The harassment included sexual comments, frequent solicitations for oral sex, and regular touching, grabbing and biting of male workers on their buttocks and genitals. Management promoted and encouraged the harassment.

Lesson learned: Same-sex harassment is abhorrent. Employers should be mindful that same-sex harassment violates the law just as other types of harassment. If it is not already part of employee sexual harassment training, employers should include it. Training and monitoring of employees is far less expensive than a $2 million dollar settlement.

Worst Co-Worker Ever

A medical assistant hired through a staffing company had minor disagreements with a co-worker. The medical assistant then put carbolic acid in the co-worker's water bottle. The employer avoided liability because the court found poisoning a co-worker is not conduct that is considered to be within the course and scope of employment. However, this did not mean the co-worker was not free from personal liability.

Lesson learned: Poisoning a co-worker is never a good idea. Luckily, this kind of conduct was found to be outside the course and scope of employment, but the employer, nonetheless, was required to defend itself in a lawsuit. Employers who become aware of co-worker disputes should take action to correct and monitor the situation.

Not By The Hair Of His Chinny Chin Chin

A parts storeroom supervisor sued her employer after her manager sexually harassed her. The first incident occurred when the manager put his arms around her and kissed the side of her face. She told him the conduct was not welcome. The second time, the manager tried to put his arms around her and she pushed him away. He then changed his demeanor towards her and was "biased and angry." He also told her not to bother reporting the conduct. The employee reported to her manager's direct supervisor, but nothing was done. The next incident occurred when the manager called the employee into his office, shut and locked the door, and told her to come over and remove an ingrown facial hair from his chin. (Yes, this happened!) He put tweezers in her hand and said, "you know I can terminate you." When she tried to leave, he put his arms around her and kissed her on the side of her face and forehead. The employee was subsequently terminated for performance problems. The court allowed the lawsuit to continue because a reasonable jury could find a causal relationship between her refusal to accept the harassment and her termination.

Lesson learned: This litigation could have been avoided if management had taken the employee's complaints seriously and acted upon them. Here, the employee complained and nothing was done to remedy the situation. In fact, she was harassed even after complaining. Also, when terminating an employee following a complaint of unlawful conduct, the employer should have significant and legitimate reasons for the termination, as the employer inevitably will be required to defend its decision.

Cultural Learnings Of America For Make Benefit of Glorious Nation of Kazakhstan

A Jordanian-born employee was nicknamed "Borat" by his co-workers. For those of you who don't know, Borat was a fictional Kazakh journalist with a thick accent who was in a film of the same name and portrayed as naïve, ignorant, chauvinistic, and anti-Semitic. The employee's co-workers routinely referred to him as Borat and told other employees to do the same. There were other comments made to him, such as "We let you in this country, and we gave you a Green Card. The least you can do is speak English." Although he did not complain to supervisors, he repeatedly asked his co-workers to stop calling him Borat because he found it to be offensive. His supervisor over heard him complain to his co-workers about the name-calling but did nothing.

Eventually, the employee's performance reviews declined and he was facing a potential performance improvement plan. Before the employer had a chance to implement a PIP, the employee took a leave of absence to attend his family's estate in Jordan. When he returned, he was told his job had been filled. He then sued his employer for hostile work environment, termination based on national origin, and retaliation for making internal complaints. The court concluded a reasonable jury could find he was harassed because he is Arab, and that the employer could be liable for failing to take corrective action. The employer attempted to argue it should not be held responsible because the employee did not directly complain; however, the harassing conduct occurred in open areas where management likely was aware of it. His supervisor overheard the complaints and took no action.

Lesson learned: Supervisors have a duty to take action even if the employee does not directly complain about unlawful conduct. In this case, the employee's supervisor had heard the complaints and was likely aware of the harassment because it was frequent and in the open. Management should be trained to recognize harassment and take appropriate action.

Harassment And Our Neighbor To The North

Harassment and retaliation happens—even in Canada. A winery employee complained to her employer that a supervisor was referring to a subordinate as "boobie girl." The supervisor claimed she only meant it as a joke. The complaining employee, who was not the subject of the harassment, was told that she should start looking for another job after she made the complaint. She was then terminated. The employer argued the actions did not rise to the level of sexual harassment, so the complaint could not be protected. The court disagreed, finding that the employee was rightfully offended by the comments (even though they were not directed at her). The court did not find the employer's reasons for termination to be legitimate as there was no evidence of any performance problems. The employee was awarded damages for the unlawful termination.

Lesson learned: Employers should use caution when dismissing an employee's complaint of harassment. While some people may not find comments offensive, and allegedly the recipient of the comments did not, they still could be considered unlawful and harassing.

Stefanie Vaudreuil, attorney in the San Diego office of the Liebert Cassidy Whitmore provides counsel and advice to and litigating on behalf of public agencies, including school districts, charter schools, community colleges, and county offices of education. Stefanie can be reached at svaudreuil@lcwlegal.com.

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