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- Screen-Saver Discrimination: HR’s Smart Investigation Erases Liability From Manager’s Dumb Move
Screen-Saver Discrimination: HR’s Smart Investigation Erases Liability From Manager’s Dumb Move
- By Mindy Chapman, Esq., Mindy Chapman & Associates
- 9/4/2008 - 10:00pm
- 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.
There’s nothing like a thorough, prompt and impartial investigation to save a company in court. So it’s time to think: Are you (and your HR staff) prepared and trained to handle investigations the correct way? As this new ruling shows, good investigations and an independent review of those investigations can be a true “get out of court free” card …
Case in Point: Cynthia Morrison worked as an emergency-room registrar for 17 years at Howard University Hospital. All was well until a new supervisor, Mark Furline, took over and hired 10 new registrars who were mostly in their 20s. Morrison claimed that Furline favored the younger employees and was hostile toward the older ones.
A rumor circulated that the younger registrars were being paid more—but that was proven to be false. Nevertheless, someone left a screen-saver message on a shared computer asking why the younger registrars were being paid more. Furline responded by leaving his own screen saver message that said, “Because they are younger, dependable and more productive—that’s why!” Furline later apologized to the staff.
Still, Morrison claimed that the hostility and retaliation toward older registrars continued on. At one point, Morrison received a written reprimand for her attendance problems. It culminated in a five-day suspension without pay. (The suspension was consistent with the company’s progressive discipline policy.)
Morrison sued the hospital and Furline personally, alleging that the reprimand was a result of age discrimination and retaliation. The hospital responded by saying that even though Furline’s actions showed discrimination, the attendance reprimand was based on a fair investigation and layers of review. (Furline v. Morrison, D.C. Cir., 7/24/08)
How did the case end … and what lessons can be learned?
A lower court dismissed the age discrimination claim. But it sent the
retaliation claim to the jury, which sided with Morrison and awarded
her $115,000. But that wasn’t the end. The hospital appealed the ruling
and won, wiping out the award. Reason:
The court said that the hospital’s five-step process for reviewing
investigations insulated the hospital and the supervisor from an unfair
investigation.
The court concluded that even if Furline’s recommendations for discipline were vindictive or discriminatory, “the review process ensured that Morrison was disciplined solely for the legitimate reason given,” (i.e. the attendance problem).
The court noted, “As far as the evidence shows, senior officials decided that Morrison’s suspension was warranted based solely on an independent review of the charges against her, and only after hearing her side of the story.”
3 Lessons Learned … Without Going to Court
1. Establish an independent review process. That’s what saved the employer in this case. The independent reviewers, all employees of the hospital, included the chief financial officer, the assistant director of HR and the director of business operations. It was just another step to ensure impartiality in the investigations process.
2. Document policy violations in real time. Morrison had been abusing the attendance and leave policy for some time before the screen saver incident. The court noted the well-documented history of her poor performance.
3. Stick to your progressive disciplinary policy, if you have one. Once again, we have a great case that supports organizations that stick to their step-by-step process outlined in the progressive disciplinary process. However, if you don’t have a progressive disciplinary process, be mindful to draft language in your discipline policies that the listed set of adverse actions are just a “guidance” and your organization reserves the right to select any discipline and in any order as necessary.
Best-Practices Leadership: Team management tips and fun team-building activities to boost team performance, collaboration and morale
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