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Cursing - the vocabulary of winners!

By Mindy Chapman, Esq., Mindy Chapman & Associates
3/26/2007 - 9:00pm
Case In Point , Discrimination & Harassment

Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

“Tr*mp.” “F*ck.” “Sl*t.” “B*tch.” “B*be.” That was the everyday vocabulary for one of the bosses at Blue Cross Blue Shield of Alabama. He used full sentences, too, like, “The only reason you are here is because we needed a skirt in the office.” And, of course, “Bl*w me.” In addition to his fine communication skills, he was also physically talented ... able to manage his employees while, simultaneously, pulling his zipper up and down in front of them.

Sounds like a real loser, right? Not in this case. The official loser was the employee who failed to report the manager’s conduct promtly and, therefore, lost her case in court. In addition, BCBS was saved from a prolonged stay in court by its two protective shields: good policy and good training. (Baldwin v. Blue Cross Blue Shield of Ala., 11th Cir., 3/19/07). Click here to read the sexual harassment case.

What does this new ruling mean to you?

Despite the fact that the employee learned in training that the BCBS anti-harassment policy required “prompt” reporting of offensive conduct, she waited three months before informing HR of her manager’s crude behavior. Prompt? Not prompt enough, ruled the court.

In fact, not only was her delay a violation of the harassment-prevention policy, but she refused to cooperate with the post-investigation recommendations, which included joint counseling with her boss or “considering” a transfer to another office.

In essence, the employer was able to set forth an affirmative defense to defeat liability because the employee “unreasonably failed to take advantage of any preventative (following the policy) or corrective (counseling or consider transferring) opportunities,” which is required by the US Supreme Court in Faragher v. City of Boca Raton (524 U.S. 775, 1998), and Burlington Industries v. Ellerth, (524 U.S. 742). The other prong is to “exercise reasonable care to prevent and correct promptly any sexually harassing
behavior.”

Lessons Learned ... Without Going to Court

Reporting procedures should include the word “promptly.” That’s what saved BCBS. Employees were required to “promptly” report harassment. When this employee didn’t, she lost the right to a jury trial.
Define ‘promptly“ in training. In harassment prevention training, ask your employees to define what promptly means to them. You will get answers such as ”now, today, as soon as possible.“ Tell them they are right and to follow their own definitions when reporting.
Investigate promptly. This saved BCBS. It will always be looked at by the courts. How quickly it takes place will work either for you or against you.
Cooperate promptly. Another save for BCBS. After the investigation ended and was ”unsubstantiated,“ BCBS offered the employee two choices to fix the situation. While it was a concern that the ”transfer“ choice looked like retaliation, the court noted it was posed as an offer to ”consider transferring“ and, therefore, not a ”transfer." In this case, the company looked reasonable by trying to cooperate with the situation and make it better for all. In contrast, the employee looked unreasonable when she refused.
Report harassment promptly. If you see it, hear it or hear about it then you are on notice to PROMPTLY report it, regardless of the language in your current policy.
Report retaliation promptly. Does your policy tell employees how to report retaliation? Often times in policies, the issue of how to report retaliation is overlooked. The same timeliness that is required to report harassment should be applied for reporting retaliation. Also, keep the reporting procedure the same so that it is not confusing. (This is why there should be many alternate routes to report misconduct.)