Sheldon and Brenda were field engineers who serviced equipment sold to hospitals and medical clinics around the country. During an extended business trip, Sheldon and Brenda spent a great deal of time together, at the customer site and during meals back at the hotel.
They’d had no prior romantic involvement. However, continuous close proximity plus copious amounts of alcohol on their last evening resulted in their sharing the same hotel room that night.
The next morning, Sheldon beamed in excited contemplation of future such rendezvous. Brenda, by contrast, shuddered with disgust. She made a promise to never again drink alcohol with a coworker.
But for a common email mistake, the story probably would have ended there.
On the night previously referenced, Sheldon had experienced a temporary lower anatomical malfunction. In an email he sent to Brenda the following day, he included a lengthy explanation of what had occurred, how the problem had been corrected, and why she could have full confidence it would not recur in their future get-togethers.
Brenda’s reaction? “Yeeechh!” She immediately deleted the message from her inbox and her trash folder. She resisted the temptation to throw her laptop into a wastebasket.
Sheldon had written his “masculine mea culpa” after clicking “Reply” to an email Brenda sent him earlier about an equipment issue. The subject line said “Repair Macro Assembly-5,” which Sheldon didn’t change. Of course, his reply addressed repair of a very different sort.
Several months passed without further incident. However, one day Sheldon had an idea. As a methodical engineer, he’d saved and sorted email messages that addressed common maintenance and repair issues on company equipment. Thinking it would be helpful for other field engineers to have them, he batched these messages together. He worked from “Subject” lines as opposed to reading each message.
You can probably guess what happened next. “Repair Macro Assembly-5” made the list.
As a field engineer, Brenda was on the recipient list. Once again she saw the “Yeeechh!” message. Even more horrifying, she saw the many email addresses in the “To” and “Cc” lines. These included Brenda’s boss, her trainees, coworkers, and key customer contacts.
Brenda said nothing to anyone. Instead, she quietly circulated her resume to other companies in the industry. Two months later, she accepted a position with another company.
The outcome wasn’t happy for Sheldon either. In addition to his own mortification at having shared embarrassingly private information with his boss, coworkers, trainees, and customers, the corrective action he received made him ineligible for promotion to section supervisor, a position he desired and for which he’d had the inside track.
The abrasive CEO had so alienated the company’s board of directors that it wanted to fire him. However, Donald had an employment agreement that provided for generous severance pay if he were terminated without cause. “Cause” included serious, repeated problematic behavior that went uncorrected following notice and warning; it also included immediate termination for egregious misconduct.
Termination for cause meant the company only had to pay him through his last day of work. Termination without cause meant a severance package totaling over $800,000.
Unfortunately for the board, there was no paper trail establishing notice and warning within the meaning of the contract. Moreover, although Donald’s behavior was obnoxious, it did not meet the high threshold of egregious misconduct.
Fortunately for the company, while the executive was out of town on business, it was able to conduct a search of his computer and email.
The search revealed an email exchange between the CEO and the president of one of its main customers. Their exchange had veered away from business to an entirely different subject: the “bed-ability” of the company’s female employees. Referring to employees by name, the men jocularly debated which women would be more likely to __________, which sexual acts would be most pleasurable with __________, and which combinations of women would provide the greatest thrill.
When the CEO returned from his trip, the president of the board of directors handed him notice of immediate termination for cause. She also handed him a booklet containing the emails in question, along with references to relevant portions of his employment agreement and company policies on computer use and sexual harassment. Finally, she offered to send a set of these materials directly to the CEO’s attorney if he desired.
Following a few feeble shots across the bow from the CEO’s attorney, the company settled the dispute by agreeing to forgive a small loan it had made the executive (which it had no intention of collecting) in exchange for a comprehensive waiver and release of all claims.
My client employed a group of mechanics. All men, they developed a practice that supposedly fostered teamwork and camaraderie. Called “CBT,” it can be illustrated as follows:
Hands at his side, Mechanic “A” casually walks by Mechanic “B,” seemingly paying no attention to the latter. However, just as A crosses B’s path, he snaps his wrist upward, the back of his hand making contact with the underside of a highly sensitive part of B’s anatomy.
In other words, CBT stands for “casual ball tap.”
CBT had been going on for quite a while without complaint to human resources or management. Evidently, self-help was the norm. If a colleague CBTed you, you CBTed him back.
But for a business downturn, this practice would have probably continued to snap under the radar (sorry). However, faced with the need to reduce the number of mechanics it employed, the company applied its informal, undocumented, and not-always-consistent layoff practice, which resulted in it jettisoning its perceived weakest link—Cecil.
Cecil did not, however, go gently into that good night. Instead, he filed a claim of sexual harassment and retaliation. He alleged that CBT had created a sexually hostile environment, that he had complained to his supervisor who did nothing, and that he was selected for the layoff in retaliation for having complained.
The company’s investigation did not support Cecil’s claim. His supervisor adamantly denied ever hearing a complaint about CBT from Cecil or anyone else. No other mechanic supported Cecil’s claims. By all accounts except his, Cecil was a willing, able, and enthusiastic CBT practitioner.
Nevertheless, there were problematic facts for the defense. These included the supervisor’s prior knowledge of CBT and occasional indulgence in it himself, and the lack of documentation of both Cecil’s weak performance and the company’s “weakest link” layoff policy. As a result, the company decided against taking its chances in court and paid off the claim, costing it nearly $20,000.
Sheila was a server at an Italian restaurant. Tall and attractive, she liked to, as she described it, “buzz the boys’ engines.” Among other things, she often re-created the Katz’s Delicatessen scene from the movie “When Harry Met Sally,” embellishing her performance with products from the dairy case.
Sheila was not a terribly good employee. Attendance problems and anger management issues combined to make her a challenge for her bosses. One day, she showed up at work by entering through the restaurant’s front glass doors, which faced a busy street in a tourist area.
“Sheila,” said her manager, “it’s 6:00. You’re late.”
Sheila responded, “You’re wrong. I’m not late. My shift starts at 6:00 and it’s 6:00.”
“No, Sheila, you’re supposed to be ready to serve customers at 6:00. Your uniform is on your arm. There’s no way you can get back to the changing area, put on your uniform, and be out here while it’s still 6:00.”
“Oh yeah? Watch me.”
Whereupon, in full view of coworkers, patrons, and outside passersby—who were no longer passing by—Sheila removed her outer clothing, leaving her temporarily clad in bra and panties, and then calmly put on her uniform.
“See,” she said. “It’s still 6:00 and I’m not late.”
Sheila next went to the EEOC, where she filed a claim, alleging she’d been subjected to a hostile work environment based on unwelcome sexual conduct. She also claimed that the employer’s stated reason for termination was pretextual: the real reason was her alleged prior internal harassment complaints (of which no one else had knowledge).
The company figured it had a slam-dunk case but was greatly chagrined to learn that the agency didn’t see things its way. Although nobody confused Sheila with Mother Teresa, agency investigators showed more interest in what they called a “sexually charged atmosphere pervading the workplace.”
The agency recruited a group of current and former employees who asserted they were also victims of sexual harassment. Faced with the prospect of defending a “pattern and practice” lawsuit, the cost of which alone could bankrupt the company, it chose to settle, making payments to Sheila and the other class members. The total cost hit six figures.
Years ago in the predigital age, a client of mine was sued by a former employee who had been fired for performance reasons. Polly claimed, however, that she’d been fired for refusing her boss’s sexual advances. Her complaint sought $2.5 million in damages.
The manager, Franklin, denied making sexual advances or that any sexual behavior of any kind had occurred. Under persistent questioning, however, he acknowledged having had an affair with Polly, which he said he had ended before her termination.
Polly and Franklin worked for a property-management company and often traveled to apartment complexes to assess their condition. During these visits, they spent time in empty apartments engaging in distinctly nonwork activity.
Franklin had been extremely reluctant to reveal this information. He explained that he and Polly had gone to great lengths to conceal their affair from others, including their respective spouses.
I asked for evidence that might tip the he-said/she-said scales. Franklin said no such evidence existed, a plausible contention in an era before email, texts, instant messaging, Facebook, etc. Yet I pressed him.
“Wasn’t there anything—gifts, cards, notes, anything at all—that might support your version of facts?”
“No, I’m sorry. We were too careful.”
I continued probing.
Suddenly, Franklin said, “Wait! I just remembered something.”
He pulled open his front desk drawer and started rummaging through its contents.
“Aha!” he cried. “Here it is!”
He produced a fragment of a photograph, no more than half an inch in diameter. It showed a female breast.
“It’s from one of our property visits,” he said. “We were fooling around in an empty apartment. I grabbed my Polaroid Instamatic that I use to photograph property conditions and took a quick picture of Polly while she was naked. After the picture printed out from the camera, she grabbed it and began tearing it up.
“But then she said, ‘I tell you what. I’ll give you something to remember me by.’ So she tore off this fragment and handed it to me. I put it in my desk drawer and had forgotten about it until your questions made me remember.”
At a subsequent mediation session, in the presence of her attorney and her husband, Polly continued to deny that any form of sexual activity had ever occurred. She scoffed at the notion that there might be evidence to the contrary.
I showed her the picture fragment. Polly studied it.
“Well,” she said, “it’s a woman’s breast, and a very nice one at that.” She added with a laugh, “Although I wish it was mine, unfortunately it isn’t.”
I pointed out what appeared to be a few strands of hair adjacent to the breast, and that they appeared to resemble her hair.
“Wrong again,” she said.
I explained my intention to have the photograph blown up and analyzed by experts, and that I planned to file a motion with the court to require an examination of the plaintiff in order to make a proper comparison. The plaintiff, her attorney, and her husband responded derisively, and the mediation concluded unsuccessfully.
We soon settled for a small fraction of her original $2.5 million demand. You might say it was a mere fragment.
Janet was vice president of human resources for a large corporation. She had over 20 years of experience in human resources, had conducted harassment investigations and antiharassment training sessions, and had been in court as a representative of her company in harassment litigation.
Her corporation acquired a company in another state. Joined from the home office by William, a senior operations director, Janet visited the company to help with the transition. Although she had not traveled with William before, they had previously gotten along without incident.
The trip was uneventful until the second evening. After work, Janet and William had dinner at their hotel. The conversation included work topics as well as benign personal ones.
Suddenly William steered the conversation in a new direction. He said, “I have a question to ask you Janet. I know you and your husband have been married for a long time just as I’ve been married for a long time. My question is: Do you and your husband still . . . you know . . . do it?”
Shocked at the question, Janet initially said nothing. Then she stammered out, “Uh, I’m not sure I understand your question, but all I can say is I think we have a normal marriage.”
“That’s good,” William replied. “Unfortunately for me, that’s not the case. A few years after our last child was born, my wife said she was done in the you-know-what department.”
Janet thought to herself, “Too much information.”
William said, “It gets old doing it with a magazine.”
Janet thought to herself, “Way too much information!”
William continued, “You know, Janet, you could do me a great favor given my circumstances. If you and I spent tonight together, no one would ever know.”
Janet said, “Uh, I don’t think so.”
“Oh come on,” William said. “You really would be doing me a great favor.”
“Uh, I don’t think so.”
By this point, Janet was acutely uncomfortable, doing her best to avoid looking at William and desperately hoping the server would bring the check.
“Okay then,” William said. “How about if you let me see you naked? I think that would probably suffice.”
Almost mumbling by this point, with her eyes on her plate, Janet said, “I don’t think so.”
“I don’t think so.”
“Final offer,” William said. “Let me see one breast. Okay? Just one.”
After this elicited the same response from Janet, William gave up this line of questioning. Janet soon excused herself from the table, saying she wasn’t feeling well. She went up to her hotel room, making sure she hadn’t been followed. Once in her room, she quickly double locked the door and put up the chain. Then she collapsed on the bed.
For the remainder of the trip and thereafter, Janet did everything she could to maintain distance between herself and William. Fortunately, he resigned a few months after this incident and left the company.
The trucking company employed 17 drivers: 15 Anglo Americans and 2 Mexican Americans. One of the Mexican American employees had a habit of poking fun at his own national origin. If he made a mistake, he’d say, “Oh, I’m just a dumb beaner.” He made other comments invoking negative stereotypes of Mexicans.
No one complained. No one reported observing signs of distress.
However, as I mentioned, the company employed two Mexican American drivers. The other driver, Joseph, took pride in his country of origin. He hated these comments. Yet he said and showed nothing. He didn’t want to get people mad at him or be perceived as weak. So as best he could, he continued to stomach the anti-Mexican jocularity.
Bottling up his emotions wasn’t healthy. Joseph increasingly felt uncomfortable, isolated, and helpless.
Eventually things reached the boiling point, and the lid came off.
An inspection revealed a minor problem with Joseph’s truck, something he’d overlooked. Word got around to the other drivers. In the break room, a couple of Anglo drivers started teasing him. One said, “I guess we have more than one dumb beaner around here.” The other drivers laughed.
Joseph said nothing. After a sleepless night, he did not report to work the next day. Nor the next one, nor the next. No one in management contacted him. Instead, the company sent him a termination notice based on “job abandonment.”
Joseph responded by engaging the services of a noted civil rights attorney, and he soon asserted claims of harassment, retaliation, and constructive discharge, alleging that his working environment had become so toxic, he was compelled to quit.
Managers had been aware of the anti-Mexican comments but had done nothing to stop them. When I asked why, their responses included faulting Joseph. “We had no idea there was a problem. If Joseph was bothered by the talk, why didn’t he let us know?”
One manager said, “When the first Mexican guy started making those beaner comments, I thought about telling him to knock it off. But I figured it might be risky for a white guy like me to tell a Mexican not to say stuff about Mexicans. So I let it go.”
I asked, “Why did no one contact Joseph after he was a no-show?”
A manager answered, “I had a hunch he was upset, but it’s the driver’s responsibility to show up to work, not ours. If he had a complaint, he needed to tell us. Besides, Joseph wasn’t that great of a driver anyway.”
After nearly five years of legal proceedings, the company finally settled Joseph’s claim. Total cost to the company (not including lost labor hours and productivity) was in the six figures.
Monica worked as an electrical engineer in an overwhelmingly male environment. After working for her company for a little over two years, she accepted a position with a competitor. Her former employer responded by suing her and her new employer, alleging that her new employment violated a noncompete agreement she’d signed.
The legal battle raged for months. I represented Monica and her current employer. When I first interviewed her in preparing our defense, she told me she left her former employer “because it was a better career opportunity for me, the pay and benefits were superior and my commute time less.” No other reasons were given.
However, during the discovery process, I learned some things about her former supervisor that made me suspicious. This prompted me to sit down with Monica again to go over why she left. She repeated the reasons she’d given me before. However, this time I kept probing, “Was there anything else? Was there anything about your former supervisor that influenced your decision? Even if you’re reluctant to share this information, it’s important I know the full facts before we go to trial.”
Monica sighed and said, “The reasons I gave you are true. It is a better career opportunity, the pay is better, and the commute shorter. However, I didn’t tell you what got me looking for another job in the first place. It was my supervisor.”
She then recounted sexually offensive behavior, which included her supervisor making crude comments, inappropriate touching, and propositions. Monica had attempted to discourage this behavior but without success. Rather than go to human resources or senior management, she chose to look for another job.
Armed with this new information, I contacted opposing counsel and said the case was about to go in a direction that would probably not be good for his client. I suggested he investigate the new facts, including the supervisor’s behavior toward other women. If he found substance in them, his client might want to rethink its scorched-earth-litigation position.
About a week later, I got a call. “I think we can reach a deal,” opposing counsel said. We quickly worked out terms, which included Monica’s former employer dropping all claims in exchange for her agreeing not to disclose trade secret information and agreeing not to bring a countersuit for sexual harassment. Monica was able to keep her job and move on with her life.
SURPRISE HARASSERS. Sheldon and Donald are classic examples of what I call the surprise harasser. These are people who engage in workplace sexual behavior without ever thinking that what they’re doing is inappropriate or might be hurtful to others. They’re not so much malevolent as they’re misguided. They make erroneous assumptions about how welcome their behavior is or about its limited scope or impact. They are therefore surprised when their behavior is deemed harassing.
In 25 years of harassment litigation, I dealt with some true predators. However, I can tell you that most of the people whose actions caused harassment trouble fell into the surprise harasser category. They weren’t out to hurt anyone yet unwittingly did so, including themselves.
SURPRISE PLAINTIFFS. Cecil, Sheila and Polly are examples of what I call surprise plaintiffs, employees who engage in the very behavior they later use against their employers. What causes the shift? Typically, it’s when something happens they don’t like, such as discipline or discharge. Suddenly, they view behavior of the type in which they themselves engaged as having created a hostile environment for them. Surprise plaintiffs typically also claim they had complained about their environment to someone in management or human resources; this gives them a basis to claim the disciplinary action against them is unlawful retaliation. Essentially, it’s the best-defense-is-a-good-offense stance.
I’m not saying most plaintiffs fall into this category. Yet enough of them do that it behooves management to be aware of the phenomenon. Typically, management learns this the hard way. It receives an unpleasant surprise. The person they thought least likely to complain is now making a formal complaint in the U.S. legal system.
SURPRISE VICTIMS. Janet, Joseph, and Monica (as well as Brenda in one of the “Surprise Harassers” stories) fall in the category of surprise victims, people who don’t express their discomfort even though they feel it. I believe most harassment victims fall into this category. No matter what your policy says or how many training classes you conduct, they won’t say anything. Fear of conflict, ostracism, retaliation, or embarrassment, plus sometimes self-blame and denial, can cause the very people the law is designed to protect to distance themselves from its protections.
Consider Janet, the vice president of human resources. What action did she take on her own behalf? I was the first person she ever told her story to, and then only because I was about to conduct antiharassment classes at her company. I explained the surprise-victim phenomenon and told her I wanted to talk about it in the classes. Would she be okay with my doing so? Her response: “I’m one of those surprise victims.”
Even if no claim is filed, employers and employees pay a price for the surprise-victim phenomenon. Unlike Joseph, who left and sued after reaching the breaking point, Monica found other employment, as did Brenda. Had William remained employed, Janet probably would have left as well. For organizations with this problem, the cost may be hidden, but it’s still quite steep.
In the wake of the 1970s Arab oil embargo, Congress passed a law capping all state and federal speed limits at 55 mph. Sustained public outcry against this law eventually resulted in its repeal. (You may recall a certain rock ’n’ roll protest song from the early 1980s by the “Red Rocker” Sammy Hagar, “I Can’t Drive 55.”)
I use Speed Limit 55 as a symbol of harassment prevention. The 65, 70, and 75 mph speed limits we have on today’s roads are like today’s antiharassment laws. You can go pretty fast.
Objectionable workplace behavior relating to sex, race, or other conditions doesn’t necessarily violate the law, even if it offends someone. Courts require additional elements of proof. The conduct must be “unwelcome” and “pervasive” or “severe.” It must pass a subjective and objective test of “abusive working environment.”
By contrast, Speed Limit 55 moves away from the legal standard. The issue is not whether the behavior is “pervasive,” “severe,” or meets the “abusive” test. It’s not even whether the behavior is “unwelcome.” Rather, it’s whether the behavior is in any way sexual, racial, religious, or otherwise related to the categories designated by law as protected. If so, it doesn’t belong in the workplace, regardless of whether or not someone has complained or whether or not someone is offended. The behavior simply stays out.
Speed Limit 55 protects surprise harassers from themselves. They can no longer rely on their assumptions that their behavior is okay because no one has complained or seems offended. It protects employers from surprise plaintiffs who can no longer play the best-defense-is-a-good-offense card. And it protects surprise victims by fostering an environment where surprise harassers aren’t running around distressing people who don’t complain.
Employees who exceed Speed Limit 55 may not be exceeding the legal speed limit. However, as these stories show, they’re on a slippery slope. The path may start out level, but it begins to change. Without being aware, the person increasingly picks up speed. Soon the edge of the cliff appears, but the person can’t stop in time. Over the cliff he or she goes, bringing the employer along for the ride—and the crash.
Stay off the slippery slope. Adopt Speed Limit 55.
Rocky stood six feet five inches and had a barrel chest and a short fuse. He was the superintendent of a construction site, and his vocabulary was small. Most words had four letters, which he used with vigor. Rocky motivated employees primarily through fear.
One of Rocky’s employees, Lee, was African American. A slender, sensitive man, Lee had a difficult time coping with Rocky. Over time, he began to suffer from anxiety, sleeplessness, and other health-related problems, which he felt were due to his work environment.
One day, Rocky got upset with Lee. He got within inches of Lee’s face, stared down at him, eyes hard, and pointed a thick finger in his face: “What the #$@!%&’s the matter with you? You worthless piece of #$@!%&*! I ought to knock the #$@!%&* out of you!”
That was the last straw. Lee quit and filed harassment claims with federal and state agencies. He alleged that he had been subjected to a hostile environment based on race and that conditions got so bad he was compelled to quit, meaning in the law he’d been “constructively discharged.”
My investigation of Lee’s claim revealed no evidence to support the claim that Rocky mistreated him because of his race, an essential element of the harassment claim. In fact, Rocky showed remarkable evenhandedness in his treatment of employees of all races and ethnicities. Rocky was the true equal opportunity offender. He treated everyone equally horribly.
We soon settled Lee’s claim for a small amount of money. However, that was not the end of the story.
My investigation also revealed that Rocky’s methods had created an environment where employees kept their heads down and mouths shut. Hear no evil, see no evil was the order of the day. One employee had recently hurt his knee and another had strained his back in on-the-job injuries. However, both chose not to report their injuries from fear of Rocky’s reaction.
On one occasion, a small group of employees had reported to Rocky an unsafe work condition. He responded by haranguing them: “What the hell is the matter with you people?! Are you that stupid?! I’m surrounded by #$@!%&* morons!”
Word of this tongue-lashing got around, which effectively eliminated the possibility that a future safety problem would be reported to management. During my investigation of Lee’s claim, I learned that there was a problem at the work site that presented a potentially deadly hazard. In addition to the threat to employee safety, if this condition were discovered during a government inspection, the plant would have been shut down.
When I shared this information with senior leaders, they were shocked. “Wow, we had no idea this kind of thing was going on! No one said anything, and Rocky has certainly never acted that way in our presence. Around us, he’s been a perfect gentleman.”
Nevertheless, based on the overwhelming evidence of Rocky’s misconduct, senior leadership decided to fire him.
Rocky’s response: “You can’t do this to me! I didn’t discriminate against anybody! Hell, I’m married to a Mexican woman!”
Rocky’s lawyer sent a letter to the company threatening a lawsuit. Although we considered the claim baseless, the company agreed to give Rocky six months’ severance pay, in large part because company employees were fearful of what Rocky might do to them for “ratting him out.” We conditioned settlement payments on Rocky’s having no further contact with anyone in the company outside of the human resources director and that the money would be paid over time to ensure good behavior.
This story highlights two important points. The first is that the Speed Limit 55 concept discussed in the harassment stories applies here too. It means focusing on company values regarding the kind of workplace behavior that’s acceptable, not primarily on legal compliance.
This client had a conventional antiharassment policy that listed legally protected classes and prohibited discrimination and harassment based on them. Company training followed the same lines. This enabled Rocky to argue that he was still policy compliant.
Had the company centered its efforts on a working environment where everyone is treated with dignity, respect, and professionalism at all times, Rocky’s argument would have lost its teeth. Productivity would have increased. Workplace injuries and hazards would have been dealt with promptly and properly. And Lee would probably still be working there.
Bullies who aren’t racists or sexists are still bullies. Don’t tolerate them.
The second point is the mistake many senior executives make. They assume that how managers treat them is how they treat their subordinates. Yet in my career, I’ve encountered many “kiss-up, kick-down” managers. Do you employ any? Would you know if you did?
As this story indicates, don’t expect your employees to come forward on their own if they have an abusive boss. And if you’re in senior leadership, don’t assume you’ll see the warning signs if a problem exists. Make it a point to find out if your organization employs any Rockys.