Boss Gives the ‘Cold Shoulder:’ Merely a Dis…or is it Discrimination?

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Does it seem like courts keep telling us we have to monitor all juvenile behavior in the workplace? Do we need to hire “conduct cops” for our hallways? A court ruling last week smacked some sense into the laws and said “no” — not all bad-boss behavior is automatically “discrimination.” Is this an early holiday gift to employers?

Case in Point: Josalynn Brown and Carolyn Wilson, who are African-American, worked as nurses at a suburban Chicago hospital. They joined 10 other nurses in complaining to HR that Filipino nurses were receiving better assignments and training than black nurses. Hospital officials investigated, but couldn’t corroborate the claims.

Eventually, Brown and Wilson requested and were granted a transfer to another hospital owned by the parent company. But the complaints didn’t stop. Brown and Wilson voiced several protests to HR, including that their new supervisors were giving them the “cold shoulder” treatment and had engaged in mild name-calling, referring to one of the nurses as a “cry baby” and a “spoiled child.”

Brown and Wilson again asked to be switched to another location. This time, the request was denied. They sued the hospital for race discrimination and retaliation.

The verdict: Title VII of the federal Civil Rights Act makes it unlawful to discriminate against employees based on their race with respect to their “compensation, terms, conditions or privileges of employment.” But receiving the “cold shoulder” from a boss and mild name-calling does not rise to the level of actionable discrimination, the court said.

“The fact that someone disagrees with you (or declines to take your advice) does not, without more, suggest that they discriminated against you,” the court ruled. “Title VII protects against discrimination, not ‘personal animosity or juvenile behavior.' Personality conflicts at work that generate antipathy and ‘snubbing by supervisors and co-workers' are not actionable under Title VII.” (Brown v. Advocate S. Suburban Hosp., 7th Cir., 11/21/12)

3 Lessons Learned … Without Going to Court

1. Investigate immediately. The court noted that the hospital responded to the nurses race and retaliation discrimination complaints right away with an investigation. HR tried to connect the dots to see if the new supervisor’s conduct was motivated by the nurses’ previous discrimination complaints. However, the supervisors had no knowledge of the nurses’ previous complaints at the prior location, so no racial motivation could be shown.

2. Prohibit name calling as a whole. Even though all name-calling behavior may not be illegal (the court noted the name-calling in this case made no references to race), it may create an unpleasant culture to work in. Even though the court said Title VII doesn’t protect “personal animosity or juvenile behavior,” name-calling can still cost big bucks to defend.

3. Make your harassment, discrimination and retaliation prevention policy stricter than the law. The prohibited conduct listed in your Harassment, Discrimination and Retaliation Prevention Policy should be stricter than what the law will allow in order to curtail these kinds of lawsuits. That being said, remember to include language like, “A violation of this policy does not necessarily amount to a violation of the law.” This will go far in showing that just because your culture will not tolerate certain behaviors it does not make engaging in them illegal in the eyes of the law.

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