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‘Zip It’ Doesn’t Work When Firing Employees

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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 …


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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{ 2 comments… read them below or add one }

Susan November 21, 2010 at 4:56 pm

I agree w/ Linda.
But wanted to add this observation: it is so costly for an individual to bring a lawsuit, not just monetarily, but in time and emotional energy that could be far better spent positively and productively looking for new/better employment.

That mayor is obviously not a very good politician! At the very least, after 19 years, rather than cut her off, he probably could have avoided a lawsuit if he had let her vent, expressed regret, shown sympathy for her side of the story … looked at her skills/strengths and even offered suggestions, encouragement, contacts for future employment in another dept or elsewhere. He’s the mayor! Other employers are going to take his call. (He can investigate the bad boss later).

The power of showing empathy/sympathy should never be underestimated. I forget the exact stats, but there’s a study that showed that when doctors apologize for their mistakes/misjudgments and recommendations for treatments that end up doing more harm than good (although this may look like an admission of “fault”) they actually are much LESS likely to be sued by patients and families–even if someone dies! It is the Doctors who fail to apologize face to face, express their sympathy and admit that the procedure/treatment failed are the ones that so anger patients that they get sued! We are all human and we all make mistakes, but we also tend to forgive those who own up to theirs.

My experience is that most terminated employees are hoping for a better job, not getting involved in a lawsuit! (How many times have you heard the terminated say “‘It ended up being a blessing in disguise,’ but only AFTER they land a new job?”)


Linda November 11, 2010 at 12:02 pm

I cannot imagine getting to the point of termination without having had previous conversations with the employee. A termination, just like a performance evaluation, should never be a “surprise” to the employee with the exception of a RIF (and you’d better have all of your i’s dotted when you get that point, too). All of the issues are likely to come to light when you are having discussions about performance and that lack of improvement may result in termination.


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