Workplace Relationships Present Many Risks for the Employer

Posted on October 6, 2009 by Tom Crane

 Many employers completely prohibit relationships between management and subordinates.  The military has some complicated rules regulating relationships and it too prohibits relationships between those with very different ranks.  But, studies show, nevertheless, that relationships continue in the workplace.  The workplace remains a prime source of marriage partners.  But, the problems developing in the wake of David Letterman's revelation about his relationships at CBS show the danger involved.  Even after ending the relationship, they can fester and develop into sexual harassment.  Co-workers can take sides in some perceived conflict and start a hostile work environment.  

Such relationships can become sexual discrimination if the employer takes adverse personnel action against one party but not both.  There are many traps for the uneducated.  That is why most large employers simply prohibit them.  CBS prohibits them, as this story explains.  So, yes, it is fair to say that Mr. Letterman could lose his job over this.  If CBS punishes no one, then it risks that no one will take its policies seriously.  If they punish the female subordinates but not the male manager, then it looks like gender based discrimination.  Looks like a no win situation for CBS, at this point. 

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The Life Experiences of a Judge Make a Difference

Posted on May 4, 2009 by Tom Crane

 I have been in the trenches, too long.  II have been representing employees in their struggle for justice and vindication, too long.   After all these years, I tend to look at judges in terms of how they will look at employment lawsuits.  I should be more balanced, but have to admit that I am not.  President Obama is looking at several possible nominees, based, he said, on how well they empathize with working people.  

That is music to my ears.  I have seen way too many cases decoded on appeal by judges who have never had to meet a payroll, never had to struggle with a minimum wage job, and never had to dig a ditch.  Way back when, I worked my way through college digging ditches, cooking hamburgers, and waiting on tables.  I did what I had to do.  My former supervisor at my ditch job, asked me once, "will you remember us when you get to be a lawyer?"  He meant will I remember the working people when, in his mind, I become rich and successful?  Well, I am not rich, but I hope I do remember my roots.  Too many appellate judges (who decide an awful lot of cases) have never done any of this sort of work, have never known people intimately who have dug a ditch.  

Struggling by itself does not make a good judge.  But, it does lend perspective.  As a country, we know this already.  That is why for decades, there was a "Jewish" seat on the Supreme court, a "Catholic" seat and now, one might argue, a "female" seat and an "Africa-American" seat.  As a country, we know that people who are not female will not understand fully the issues of women.  We know that Caucasians will not fully appreciate African-American issues.  Having represented many people who had real jobs in the real world, I believe that judges who never worked during college or law school, who went from law school to big law firm and then to a judgeship, just cannot fully appreciate the issues of people who had "real" jobs.  

How else do you explain a decision in which a black man is referred to as boy on several occasions, yet the Fifth Circuit Court of Appeals finds this does not equate to hostile work environment?  The life  experiences of a judge do matter.  

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A good investigation is a good investment

Posted on April 10, 2009 by Tom Crane

 I am frequently asked about sex discrimination.  Until I retired last year, I was a member of Reserve/National Guard units for many years.  Sex harassment was an occasional topic of concern.  It is true that unwanted touching is clear sex harassment.  But, what about invitations to dinner?  What about persistent invitations to dinner?  If the person says no, how clear must she be?  How often does she need to say no?  What if the harassment comes from co-workers?  This is a very complicated subject, wrought with deep emotions on all sides. 

There are generally two types of sex harassment: hostile work environment (most often caused by co-workers) and traditional sex discrimination (in which a supervisor treats an employee differently due to the employee's gender).  Hostile work environment refers to occasions when co-workers make a person's work environment extremely difficult - and the co-workers(s) are motivated by the victim's gender.  This is when you hear stories of graphic pictures hanging on the wall or sex based jokes.  As I used to tell my Guard/Reserve audiences, the only safe joke now is a good Aggie joke.  There is no place for gender based jokes in today's workplace.  

Contrary to what some people, even some trained HR personnel, say, there is no easy formula for what constitutes hostile work environment.  It all starts with the alleged victim.  What does he/she say?  What does he/she find objectionable?  The HR/management team should complete a thorough investigation.  The employer is not required to be perfect or understand everything, but it is required to make a thorough investigation and take effective action if necessary.   One of the many challenging aspects of harassment, sex based or otherwise, is the employer must listen closely to the alleged victim.  Sometimes, the harassment consists of relatively harmless acts, such as refusing to invite the victim to critical meetings or even lunch, refusal to greet the alleged victim in the hallway, or worse.  So, it is important that the employer do something it may not often do: listen closely.  

But, in the end, it is about retaining trained, qualified, motivated employees.  So, the better the employer responds to one incident or one complaint, hopefully, the better *all* employees will perform.  In the end, a well-motivated workforce is a profitable workforce.  

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