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Employees Teasing Co-Worker About Personal Appearance? Prepare for Your Own Appearance in Court

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in Case In Point

Some employees in your organization were probably pestered as kids on the schoolyard for the way they looked. Maybe they wore thick glasses or had an “uncool” backpack. Now these people are older, and they can take their bullying complaints to the court—not just the principal.

One court recently said that “personal appearance” can be a protected characteristic. And employers should take prompt action to stop employees from being ridiculed, and to make sure no one retaliates against the employee who complained …

Case in Point: Christopher Wesolowski, an instructor at the Federal Law Enforcement Training Center, wore an earing and kept his hair in a ponytail. Some of his co-workers ridiculed him about his appearance and how it didn’t conform to traditional male grooming standards.

Wesolowski complained, so two execs sat down with him and the alleged main perpetrator of the teasing. But the co-worker was never disciplined and Wasolowski said the meeting was “a weak attempt to stop the behavior.”

A few months later, Wasolowski and the perpetrator both applied for the same promotion. The perp was selected, but Wasolowski was told he was next in line for a promotion. However, when the next opportunity arose with two vacancies, Wasolowski was told he would have to restart the interview process. Instead, he sued, citing three counts of retaliation under Title VII because he exercised his legal rights (complaining about harassment) and now was getting denied an advancement as a result.

The employer tried to get the case dismissed. But the court sided with Wasolowski, sending it to a jury trial and noting that, “Numerous courts across the country have held that comments based on a plaintiff's failure to conform to sexual stereotypes are actionable under Title VII.”  (Wesolowski v. Napolitano, S.D. Ga., 3/25/13)

3 Lessons Learned…Without Going to Court

  1. Listen carefully. If an employee complains of being ridiculed about his or her appearance (or you observe it), regardless of the details (piercings, hair, height, weight, etc.), consider yourself “on notice” of a potential violation of the law and you must take prompt, effective action to stop it, prevent it from happening again and monitor for retaliation. It doesn’t have to be about one’s age, race or disability anymore.
  2. Discipline meaningfully. As this case proves, if you don’t give the perpetrator a meaningful slap on the wrist, the court will give you one instead.
  3. Never make promises you don’t keep. If you tell an employee they are next in line for a position and that position becomes available, you had better follow through with your promise or be prepared to explain to a court why you changed your mind.

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