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You’ve had it up to here. Now it’s time to fire a poor 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 …

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Case in Point: Cynthia Rodgers worked for 19 years at the public works department in Elizabethtown, Ky. Her boss, William Owen, regularly propositioned her, kissed her and touched her body. He made sexually inappropriate statements to Rodgers including that sex was part of her job description.

While Owen initially refused to stop, he eventually left her alone. But after that, according to Rodgers, Owen then began limiting her overtime and finding more fault with her work performance and tardiness.

On the day she was fired, Rodgers said she planned to tell the city’s mayor about Owen's sexual harassment and alleged retaliation. But at the termination meeting, the mayor cut her off by saying, “It doesn't matter what you say, you're terminated.” He refused to listen to her assertions about her boss’ misconduct.

Rodgers filed a Title VII sexual harassment lawsuit under both the hostile work environment and quid pro quo theories. The city denied the claim, saying Rodgers was fired for poor performance.

Ruling: The court last week dismissed the city’s bid for summary judgment and sent the case to a jury trial. It noted that Owen—who admitted to making numerous sexual advances on Rodgers—brought Rodgers’ alleged performance issues and absenteeism to the attention of 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 Rodgers had filed her lawsuit. (Frentz v. Elizabethtown, W.D. Ky., 11/4/10)

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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