A Rogue’s Ranking

A Rogue’s Ranking

A Rogue's Ranking

"Yes, sir, I'll schedule that with our driver for a Tuesday delivery," Fran said to the customer on the line, making a note of the request on her pad.  "You're welcome," sheMan Giving Perfomance Review responded to the customer's appreciative thank you.

But before she could put the phone in the cradle, another line began flashing.  "Customer service, Fran speaking," her voice sang into the receiver.  "How can I help you?" 

While Fran was busy listening to the customer's request, Pete, the district sales manager, tiptoed up behind her.  He dropped a piece of paper on her desk and scurried away quietly, as his shoulders shook with laughter.  Fran sensed Pete's presence and wheeled around in her chair to respond to him when the customer put her on hold.  Pete was gone, but his one-page delivery lay on the corner of her desk.

Fran recognized the paper as the company's standard performance appraisal.  The ranking scale ran from one to five, with one representing "unacceptable" and five designating "exceeds expectation."  In the section where Pete was to fill in the key duties for her job and rank them accordingly, he had scrawled the following:

1. Face=3

2. Breasts=1

3. Butt=5

4. Legs=3

Fran's face turned as red as the evening Tennessee sun.  She felt her teeth clench in anger as she tried to maintain her composure.  When the customer came back on the line, she strained to keep a smile in her voice.  Then she called her lawyer. 

Three weeks later Donald Denny, the company's corporate counsel, flew to the regional office to meet with Pete and his boss. 

"What the hell were you thinking when you did this, Pete?" he scolded.

"Well, we were due for a performance appraisal, so I thought it would be funny to start on a light note," Pete shrugged.

"More like a sour note," Donald groused.  "Because of your idiotic behavior, we don't have a leg to stand on, and she'll get a nice little nest egg compliments of the company.  Next time you decide to assess someone's butt, make it your own, because right now it's in a sling."

Donald viewed Pete as a continued liability and tried his best to persuade the regional operations manager to fire Pete for his behavior.  Despite Donald's protests, the operations manager insisted on retaining Pete but negotiated an alternative solution.  He agreed to freeze Pete's bonus for three years as retribution for the incident and to enroll him in a sexual harassment course.

Panel:

Pete's behavior is reprehensible.  Both punishment and training are essential to prevent a repeat performance.  The company also needs to communicate to everyone it will not tolerate such behavior.  Since this was Pete's first offense and it did not involve intimidation or coercion, termination is not necessary.  A repetition of his action, however, would justify termination.

The company must evaluate Pete's punishment in the context of its sexual harassment policy.  If the company had no formal policy and never communicated to managers and staff that such behavior is wrong and unacceptable, the firm is partly at fault.  On the other hand, if such a policy existed and was clearly communicated, Pete's penalty should be severe.  This includes a public apology and acknowledgment that the behavior was wrong and hurtful. 

The three-year loss of bonus may have significant monetary value, but the punishment takes too long and drags the issue out.  Furthermore, this type of financial penalty may cause Pete to feel bitter and resentful toward Fran, making it more difficult than ever for them to continue an acceptable working relationship.  The point is to change behavior and prevent recurrences. 

Let's assume that Pete was really just an insensitive dolt who did not know how hurtful his actions were.  If that was the case and the company rehabilitates him quickly and completely, a public apology, loss of one year's bonus, and participation in training (perhaps helping to develop a policy and training sessions if none exist) are probably sufficient.   We feel it does not make sense to continue the punishment after the offending behavior has stopped and been replaced by appropriate behavior.

We also think it's important to get Fran's perspective.  How did she want to see the problem dealt with?  Was she prepared to continue working for Pete or had the work atmosphere been so badly damaged that it would be intolerable for her to continue working there?  In the latter case, an appropriate action would be to transfer Pete or Fran (if she wanted) to a different location or position. 

Legal:

This story is a prime example of why we advise clients to have a sexual harassment policy that is published in an employee handbook and/or otherwise disseminated to its employees.  First, had the company had a sexual harassment policy, (hopefully) Pete would have had a heightened awareness that such conduct was not only inappropriate but also unlawful.

In determining whether conduct or statements are sufficiently severe to rise to the level of unlawful sexual harassment, some state courts have relied upon a "reasonable woman" standard.  Under federal law, however, an objective standard, the "reasonable person" standard, as well as the victim's subjective perception are applied to determine whether a hostile or abusive work environment exists.  Here, where the woman's supervisor was rating her performance based on his assessment of her body parts, it would be hard to imagine a jury not finding that a reasonable person or reasonable woman would find this conduct creating a hostile, abusive environment.  After all, a performance appraisal is at the heart of the employee/employer relationship.

One of the employer's primary objectives in handling a sexual harassment situation should be to keep the investigation in-house without the intervention of any government agency.  A company-disseminated sexual harassment policy may assist the employer in meeting this objective.  A well-written policy will advise employees who believe they have been harassed to report the harassment to a designated individual in the company.  Because an employee's supervisor is often the harasser, the policy should give the employee an option of reporting the incident to someone other than his or her supervisor.  For example, employees may be told to report the incident to the human resources manager.  Often times a victim of harassment determines that there is no need to go outside the company for relief when he or she sees that the company takes the complaint seriously and acts decisively to remedy the problem.

Depending on the circumstances, it is not always necessary to terminate an individual who has been found to have acted inappropriately.  Often other disciplinary action, such as suspension, probation, or wage freeze, may be more appropriate.  The employer should also document for the record what corrective action was taken.  Sexual harassment training and monitoring of the individual's behavior in the future would be prudent.  Most important, however, the employer must demonstrate that a hostile or abusive environment will not be tolerated in the workplace.

Excerpted from Sex, Laws, & Stereotypes, by N. Elizabeth Fried, Ph.D.©

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