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by Mindy Chapman, Esq.

You’ve had it up to here. Now it’s time to fire a poorly performing employee.

As you’re about to do so, the employee wants to tell you something. But you tell her to “zip it.” Nothing she says will change your mind. As this case shows, you better zip it yourself and listen. Here’s why …

Case in Point: Cynthia Rogers worked in the public works department in Elizabethtown, Ky. Her boss, William Owen, regularly propositioned her, touched her and made sexually inappropriate comments to her.

Owen eventually gave up. But after that, according to Rogers, he began limiting her overtime and finding more fault with her work performance and tardiness. She was eventually fired.

At the termination meeting, Rogers tried to tell the city’s mayor about Owen’s alleged harassment and retaliation. But the mayor cut her off, saying, “It doesn’t matter what you say, you’re terminated.” He refused to listen to her assertions.

Rogers filed a sexual harassment lawsuit. The city denied the claim, saying Rogers was fired for poor performance.

Ruling: The court sent the case to a jury trial, noting that Owen brought Rogers’ alleged performance issues to upper management only after she had rebuffed his advances.

Plus, the court didn’t allow the city to assert a defense that it “exercised reasonable care … to prevent and correct” harassment because the city’s anti-harassment policy existed only in the employee handbook.

The policy wasn’t widely disseminated or understood by workers. And the city offered no sexual harassment training until after Rogers had filed her lawsuit. (Frentz v. Elizabethtown, W.D. Ky.)

3 lessons learned … without going to court 

1. Listen. Never shut down employees who are trying to tell you something. They may be attempting to give you notice of unlawful behavior. And you’re required to follow up on every complaint—even complaints from employees that you are terminating.

2. Distribute your anti-harassment policy beyond letting it sit in your employee handbook. As this case shows, you’ll limit your defense options if you limit distribution of your harassment policy.

3. Train your employees on your anti-harassment policy so they understand how to conduct themselves. More training = less chance of a lawsuit (and a better defense if you are ever sued).

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Mindy Chapman is an attorney and  president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her blog postings at BusinessManagementDaily.com/Mindy.

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