The Right to Be Treated with Respect

The Golden Rule of Employee Relations

Without feelings of respect, what is there to distinguish men from beasts?

—Confucius¹

Why do employees sue? I often think about this question. More often than not, it comes down to respect. Employees sue when they feel disrespected or when they perceive unfair treatment. Yet, it is not simply enough for an employer to treat employees well during their tenure. Employers should also strive to treat employees well in conjunction with their terminations and even thereafter.

If you do not want to be sued, for example, do not make a terminated employee feel like a common criminal by having security escort them to the door (unless you legitimately and reasonably perceive a safety risk). It is okay not to give a glowing recommendation to a marginal ex-employee, but resist the urge to trash him or her to a prospective employer. Do not fight unemployment except in the most clear-cut cases. These little things could go a long way in helping an ex-employee reach the decision to let bygones be bygones and not to see you in court.

Consider the following examples.

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At the conclusion of a day-long plaintiff’s deposition in an FMLA and disability discrimination lawsuit, it was clear to me that my client had not only not violated any laws but had bent over backwards to do everything possible to accommodate the plaintiff. The company had treated this employee so well during her employment that I asked a question that I had never asked in any other deposition—why are you suing?

It seems to me that they treated you fairly. They gave you an initial medical leave of more than 12 weeks; they provided you every accommodation you requested for your medical conditions; they provided you a second medical leave of more than 12 weeks; and you received several raises during your employment. Why are you suing this company?

The answer she gave floored me—not because it was damaging to my case but because something that seemed so trifling caused the lawsuit. Her answer: “They started fighting my unemployment.” Even though the case ended in the company’s favor, it (and the tens of thousands of dollars of legal fees, and the distraction of witness interviews, document productions, and depositions) easily could have been avoided by not challenging an average-performing employee’s claim for unemployment compensation.

Or consider the following story about an Iowa convenience store:²

A Bettendorf [Iowa] businessman, branded as the “boss from hell” by some of his employees, offered prizes to workers who could predict which of them would next be fired. . . . William Ernst, the owner of a Bettendorf-based chain of convenience stores called QC Mart, sent all of his employees a memo in March, outlining a contest in which the workers were encouraged to participate. The memo read: “New Contest—Guess The Next Cashier Who Will Be Fired!!! . . . To win our game, write on a piece of paper the name of the next cashier you believe will be fired. If the name in your envelope has the right answer, you will win $10 CASH.”

An administrative law judge sided with an ex-employee in her unemployment hearing, writing about the “egregious and deplorable” contest: “The employer’s actions have clearly created a hostile work environment by suggesting its employees turn on each other for a minimal monetary prize. . . . This was an intolerable and detrimental work environment.”³

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Or consider the case of Gaskins v. Mentor Network-REM.⁴ The company’s cardinal sin in terminating Joyce Gaskins that led to the filing of her lawsuit was that it notified her of her termination by voicemail. In short order, the court of appeals affirmed the trial court’s dismissal of Gaskins’s claim for intentional infliction of emotional distress:

Gaskins’s intentional infliction of emotional distress claim is based on the fact that REM terminated her via voicemail, which she argues is not standard procedure. This is simply not the sort of outrageous or egregious behavior contemplated for this intentional tort.

There is nothing illegal about terminating an employee by voicemail, email, text message, Facebook, Twitter, or the like. But, as this case illustrates, employers nevertheless often pay a price for not treating any employee (let alone a terminated employee) with decency.

No matter the ills that led to Gaskins’s termination, she deserved to be told of her fate in person. Treating an employee poorly at termination might not be illegal, but it may lead to the bad feelings that cause lawsuits to be filed.

There is nothing easy about the communication of a firing. I have had to fire people. It is the worst part of my job. It is also part of what you sign up for when you assume a management role. But, as uncomfortable as it is to tell someone they are losing a job, it is exponentially more difficult to be on the receiving end of that news. Do the right thing by your employees and provide them the courtesy of delivering the news in person, no matter the circumstances, and otherwise treating them with the respect with which you would want to be treated if the proverbial shoe was on the other foot.

Responsibility, Where Have You Gone?

These issues of respect, however, become difficult when employees do not respect you back. One area where businesses feel disrespected is in the arena of personal responsibility. No one wants to take responsibility for the acts that lead to a failed promotion, a missed raise or bonus, or, worse yet, job loss.

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This example, while not from an employment case, nevertheless helps drive home this point.

A woman in California filed a class-action lawsuit against McDonald’s, which the federal court later dismissed.⁵ She claimed that McDonald’s tempts kids to eat unhealthily by promoting their fattening food with Happy Meal toys. I know you may find this hard to believe, but, yes, if parents feed their kids too many Happy Meals, they may get fat. Is it just the cheap cardboard box and tchotchke toys that tempts families to eat unhealthily, or does the obesity result from parents that are either too busy or too lazy to feed their kids healthy foods? Or do parents who permit their children to lounge around the house watching TV and playing video games beget overweight kids? Yes, too much fast food can make you fat. But not only is it not the only reason kids become overweight—I would venture to guess it is not the main reason either.

Here is an example from the defense side of the table. I once defended a sexual harassment lawsuit, in which an ex-employee claimed the company president harassed her by repeatedly showing her naked photographs on his computer. He claimed she was disgruntled after being fired (likely true) and was exaggerating one incident when he mass-forwarded an off-color joke around the company. Comfortable with his story, confirmed by everyone else at the company and via computer forensics, we denied the allegations in the company’s statement of position in response to her EEOC charge. We denied them again in answering her complaint and again in responding to her discovery requests. When the lawyer kept harping on these denials at the company president’s deposition, my “Spidey sense” started to tingle. When her lawyer pulled out a closed manila envelope and asked the court reporter to mark it as an exhibit, I started to sweat. When the company president opened the envelope, I knew the case was over. Inside, were seven photographs of the company president, naked in a hot tub with two women of ill repute who shared his state of undress. The case settled shortly thereafter, for a lot more than it was probably worth—all because the company president refused to accept responsibility for a critical lapse in judgment.

We have become a society that refuses to accept responsibilities for our faults. I see it all the time in employment cases. The insubordinate employee is convinced that her race/sex/age/disability was the reason behind her termination. The chronically late employee is convinced that he is being retaliated against despite his unreliability. The overly sensitive employee shrieks that one harmless email is a pattern and practice of lascivious harassment. One theme that resonates repeatedly in cases I defend is a refusal to accept responsibility. Yes, employers do discriminate, retaliate, and harass. More often than not, however, businesses simply try to do right by their employees. Yet, if you believe all of the lawsuits that are filed, corporate America is one giant group of bigots, and employees are never responsible for their own unemployment.

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(In)Civility and Discourse

This lack of responsibility carries over into what I consider the degradation of civility and discourse in our society and our workplaces.

Several years ago, I attended Ohio State’s graduation. Upon arriving at the Schottenstein Center for the ceremony, I stopped to ask a traffic-directing cop if I could turn in for disabled parking for my in-laws. He asked to see the handicapped placard, which my father-in-law showed him. The cop followed with the following, in the most patronizing and condescending voice possible: “Do you see that little hole at the top? That’s so you can hang it from your mirror so I can see it and don’t have to ask you for it.” That is 26 more words than it would have taken him simply to say, “Thank you sir. Turn here.”

I read an article in the New York Times about the decreased level of civility in our society and its effect on the workplace.⁶ The writer’s thesis is that technology has caused a decline in civility over the last 10 years, which, in turn, has negatively affected the workplace:

[A]s we’re all aware, the 21st century has brought with it new variations on rudeness. Answering texts during a luncheon. Tapping on BlackBerrys instead of listening to a speaker—or a child’s recital. Shooting off hostile e-mail anonymously. But is this decline in manners real? And when considering this, should we separate the outward symbols of politeness from general civility? It’s a complicated but important issue that has a surprising economic impact.

The article also discusses a book written by Christine Pearson, a professor of management at Thunderbird School of Global Management in Arizona, entitled, The Cost of Bad Behavior: How Incivility Is Damaging Your Business and What to Do About It. Professor Pearson researched 9,000 managers and workers and concluded that incivility is rampant on the job. She cited examples such as rudeness, ignoring requests for help, ignoring a colleague passing in the hall, gossiping behind colleagues’ backs, and borrowing supplies without asking.⁷

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From these parables, I can draw three lessons for employers:

1.  Social media has downgraded the level of discourse in our society. One out of every four Internet pageviews in the United States occurs on Facebook.⁸ It is not a stretch to conclude that this increased connectedness and familiarity with each other has led to more informality and less civility. The ability to communicate in 140-character bursts does not require truncated discourse.

2.  It often takes a lot more effort to be an ass than it does to be nice. The next time you feel bothered by something an innocently intentioned employee says or does, think of which response will more likely result in resentment and division—emotions that lead employees to sue or form unions. And then rethink your response.

3.  Whether incivility is a real workplace problem or not, it cannot hurt to try to be a little nicer to each other. Behavior models start at the top. If an organization is run by intimidation and scare tactics, then it should come as no surprise when managers and supervisors think they need to motivate their teams by yelling, harassing, sniping, and snubbing. It should also come as no surprise when employees respond with the incivility of litigation.

Concluding Thoughts: The Golden Rule of Employee Relations

On April 4, 2006, Jerry Romans received a call at work from his sister, who told him that his terminally ill mother was unlikely to survive the night, and decisions needed to be made about whether to keep her on life support. Prior, Romans had submitted paperwork to his employer certifying that he was a health care provider and power of attorney for his mother. He intended to go to the hospital immediately after his shift, which was scheduled to end at 11 P.M. His employer, however, told him to work a double shift to cover for an employee on the next shift who had called in sick. Romans told his supervisor, “I’m not staying. My mom’s dying. I’m leaving.” The supervisor responded, “I’ll have you fired if you leave.” Romans nevertheless punched out, left the facility, and drove to the hospital.

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In his subsequent lawsuit, Romans challenged that the one-day suspension he received for “leaving the facility and abandoning his shift” violated the FMLA. In Romans v. Michigan Dep’t of Human Servs.,⁹ the court agreed. It pointed out that the FMLA’s regulations provide that an employee who is “needed to care for” a family member is entitled to FMLA leave. That “care” can be either psychological comfort or physical care and includes arrangements for changes in care. The Sixth Circuit concluded that “a decision regarding whether an ill mother should stay on life support would logically be encompassed by ‘arrangements for changes in care.’” Applying a common-sense (and, dare I say, human) interpretation of the FMLA, the court added: “To be sure, this is the kind of decision, like transfer to a nursing home, that few people would relish making without the help of other family members, and the regulations do not force them to do so.”

Much too often, we—as lawyers, business owners, HR professionals, and the like—become too caught up in what the law allows us to do or forbids us from doing. When we focus too much on the legalities of a personnel decision, we risk losing focus on the humanity of the situation. This case illustrates that 1) the law, every now and again, lets employers make humane personnel decisions, and 2) bad things happen when businesses ignore what I call “The Golden Rule of Employment Relations.”

The Golden Rule of Employment Law states: “Treat your employees as you would want (or as you would want your wife, children, parents, etc.) to be treated.” If you follow this rule, you will insulate yourself from most employment lawsuits. Most would never be filed, and you would win most that are filed.

Think of it this way. Juries are comprised of many more employees than employers. Jurors will empathize with the plaintiff in most cases. Yet, if jurors feel that you treated the plaintiff the same way the jurors would want to be treated in the same circumstances, the jury will be much less likely to find in the employee’s favor.

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Epilogue: Lessons from Children’s Literature

Believe it or not, I do not practice law around the clock (although it often feels like I do). Like most people with small children, when asked about my hobbies, I struggle for a response. That struggle, however, is the answer in itself—my family is my number one hobby.

Ever since my daughter Norah (now age six) could listen, my wife Colleen and I have diligently read to her. Our family tradition of nightly bedtime stories continued with the birth of our son Donovan (now age four). Recently, it has taken an interesting turn, as Norah can take over the reading duties to Donovan, my wife, and me.

From our family ritual, I have been able to draw some lessons that carry over to human resources and employee relations, which I am sharing with you.

Click, Clack, Moo: Cows That Type

“Farmer Brown has a problem. His cows like to type.” So starts Click, Clack, Moo: Cows That Type,¹⁰ my daughter’s favorite book at the ripe old age of one.

In Click, Clack, Moo, Farmer Brown’s cows and hens decide that they need electric blankets to keep warm at night in the barn. They deliver their demand to Farmer Brown on notes typed by the cows on a typewriter. When Farmer Brown refuses their demands, they go on strike, withholding milk and eggs. Ultimately, in a deal brokered by the duck, Farmer Brown agrees to accept the cows’ typewriter in exchange for electric blankets. The labor dispute ends, and the cows and hens go back to producing milk and eggs. The deal backfires on Farmer Brown, though, as Duck absconds with the typewriter and turns it into a diving board for the pond.

Click, Clack, Moo: Cows That Type teaches us some valuable lessons:

1.  Fair treatment. The best means to avoid collective action by your employees is to treat your employees fairly. The barn was cold, and the cows and hens perceived that they were being forced to work in intolerable conditions. When Farmer Brown refused even to consider any concessions, they went on strike. If you want your employees to work hard, not unionize, and not file lawsuits, treat them fairly. Maintain reasonable, even-handed work rules and policies. Apply them equally. Don’t discriminate. There is no guarantee that you’ll stay out of court, but if you end up there, you’ll have a much easier time convincing a judge and a jury of the rightness of your decision if you are perceived as being fair, reasonable, and even-handed.

2.  Litigation is an answer, but not always the best answer. Even in employment cases, where there are so many emotions in play on both sides of the table, it is only the most frivolous of cases that cannot not be resolved at some dollar figure. It is the job of the employer, working with its attorney, to strike the right balance between the cost of litigation and the cost of settlement. Convictions often get in the way, and often times litigation and trial are the only means to an outcome. But you should always keep an open mind toward a resolution.

3.  Do not go it alone. When resolving any case, make sure all your loose ends are tied up in a tidy agreement. Farmer Brown missed this last point. A well-drafted agreement that included Duck would have avoided the added expense of the diving board. If Farmer Brown had retained competent counsel, he could have potentially avoided the problem with Duck (who probably went to law school).

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Knuffle Bunny: A Cautionary Tale

Another of my children’s favorites is Knuffle Bunny: A Cautionary Tale.¹¹ Knuffle Bunny tells the story of a toddler named Trixie, who loses her stuffed bunny (and prized possession) during a trip to the Laundromat with her daddy. When she discovers her loss, she tries to tell her daddy, but he does not understand her baby babble. When Mommy catches on, the family rushes back to the laundromat to find Knuffle Bunny.

What lessons can employers take away from this “cautionary tale”?

1.  There are no hard and fast rules about how employees must complain about harassment or discrimination. Trixie, who had not yet learned to speak, did the best she could to communicate to her daddy that Knuffle Bunny was missing. The fact that he did not understand her did not change his fatherly responsibility to help locate Knuffle Bunny. The same holds true for employers. In a perfect world, employees would lodge complaints in typed memos, dutifully turned in to designated persons in the HR department. Our world, however, is far from perfect. Employees email, text, leave voice mails, scribble hand-written notes, make off-handed comments, and sometimes even say nothing at all. Regardless of how a manager or supervisor learns about harassment or discrimination, the rules are the same—investigate, remedy, and do not retaliate.

2.  Leave no stone unturned. When Trixie’s family first returned to the laundromat, they could not find Knuffle Bunny. It was not until Trixie’s daddy redoubled his efforts that he found it. The same holds true for employers’ investigations. A halfhearted investigation is no better than no investigation at all. If a document is missing, you better be able to convince a court that you took all reasonable efforts to locate it. If you conclude that an employee’s harassment complaint is unfounded, you better be sure you interviewed everyone identified as a potential witness. If you are going to discipline or terminate an employee, you better double check that you considered all documents and witnesses before reaching a conclusion. Courts are loath to second-guess employers’ business judgment but will not hesitate if it appears an employer slacked in its investigatory responsibilities.

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Dr. Seuss

One of the highlights of my daughter’s kindergarten year was Dr. Seuss week. As I reread many of his classics with her, I got to thinking that, given the adult themes weaved into these books, there must be some lessons for employers. I came up with the following:

Horton Hears a Who teaches that employers should not ignore complaints by employees. If an employee raises a concern about harassment, it is best for the company to take the complaint seriously, investigate, and take whatever corrective action, if any, is necessary. It is far better to investigate and conclude that nothing is there than to ignore the complaint and have it blossom into a lawsuit.¹²

And to Think That I Saw It on Mulberry Street, Dr. Seuss’s first children’s book, is about a boy who dreams up a wild story to tell his father when he gets home from a walk down Mulberry Street but ultimately decides to simply tell him what he saw. For employers, the lesson is to deal openly and honestly with employees. Gossip runs rampant in every workplace, and it is better to quell rumors than to keep truths from or even lie to employees.¹³

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The Cat in the Hat teaches that employers must know when it is the right time to cut bait with a troublesome employee.¹⁴

Yertle the Turtle involves the king of the pond who commands the other turtles to stack themselves beneath him so that he can see, ignoring the turtles’ pleas for rest. The lesson for employers is to treat employees fairly or end up in the mud.¹⁵

The Sneetches—about shunning those who look different—teaches an important lesson about discrimination. In that book, a race of creatures known as Sneetches is divided into those with green stars on the bellies and those without. As the story begins, those with stars shun those without. A “fix-it-up chappie” named Sylvester McMonkey McBean offers the Sneetches sans stars the opportunity to have them, for a small price. Fearful of losing their special status, the original starred Sneetches purchase a treatment from McBean’s star-off machine, which, as it name suggests, removes their belly stars. Each group runs from machine to machine to regain their special status. Ultimately, the back-and-forth renders the Sneetches penniless, and McBean leaves wealthy. Through the experience, the Sneetches learn that neither group is superior, and all become friends. Do not Sneetch your workplace by waiting to learn an expensive lesson through a no-side-wins discrimination lawsuit.¹⁶

Finally, Fox in Sox teaches that sometimes you just have to have a little fun.¹⁷

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