The Czar of Harassment–Part 2
Later that afternoon Al spoke with each one of the women separately. He was shocked to learn about Norbert's crass, derogatory statements. He informed Marianne, who verified the stories with the women.
"Well, even if we didn't have him on performance," Marianne said, "this alone would do it. I don't want him here another day. He's gone."
They terminated Norbert that day, and everyone in the department celebrated. The following week Marianne received a letter from the Newark Equal Employment Opportunity Commission (EEOC) charging age discrimination on Norbert's behalf. "What!" Marianne exclaimed as she read the claim. "He's only 39. There's no age discrimination. They must be having a slow month with nothing else to do but harass us," she thought, shaking her head.
She called the local office and pointed out that he was too young for an age discrimination suit. They apologized for the error and withdrew the claim.
Norbert's next move was a letter-writing campaign. First he wrote to the chairman of the board and then to all the board members. He claimed he was unfairly treated and discriminated against because of his age. Marianne notified the board that his claims were unsubstantiated.
Marianne thought she had rid herself of Norbert, but two years later, Norbert reappeared like a recurring nightmare. She received a letter from the Tulsa EEOC. The letter stated that Norbert was willing to settle if the company gave him his old job back, paid his way back to New Jersey, and provided back pay for the past two years.
"Boy, these folks really must be bored to take this case," Marianne thought. When she called the EEOC officer, she attempted to explain why the case lacked substance, but the officer was intent on pursuing the case.
She realized the officer was an overzealous neophyte and asked to speak to his supervisor. Instead of complying with her request, the officer attempted to flex his muscles by saying, "I'm going to come in there and turn your facility upside down. You'd better take this guy back or else."
"Or else what?" she countered just as strongly.
"You don't know what I can do!" he insisted.
"Have at it, sonny boy," she challenged, "but let me talk to your supervisor."
Once the officer realized his intimidation tactics were ineffective with Marianne, he relinquished his authority. Marianne explained the case to the supervisor, who assured her the whole mess would dry up and blow away.
Now that she was free of Norbert, Marianne began her traditional file-closing ritual, which she reserved only for the most severe cases. She picked up Norbert's personnel file and reached in her desk for her lighter. She struck the flint and placed the flame at an angle, nearly touching the corner of the file. She held the lighter until the heat from the flame left a small scorch mark on the file. Satisfied that she had branded Norbert's file as officially closed, she put her lighter away. Then she leaned back in her chair, took a deep breath, and enjoyed the next few minutes of peace and quiet knowing he was out of her life.
They say that you hire your own problems. Sure enough, here's a sad but all-too-common tale of a poor hire. The company should have structured its hiring process to screen out candidates such as Norbert. Multiple interviews including human resources, peers, subordinates, and supervisors would have undoubtedly revealed Norbert's many flaws. Additionally, an assessment center would have been extremely pertinent to the selection of an inexperienced candidate for a supervisory position.
A careless hiring process can be very expensive for a company, both in absolute dollars and lost productivity. In this case, the worst consequences–possible legal fines if an employee filed discrimination charges–were avoided. Nevertheless, lost productivity, inefficiency, and the time spent by the HR manager to resolve the situation were considerable.
Al's manager in this instance should have penalized Al for failure to follow an appropriate selection process with verification of references before hiring. And, although the human resources department should not be in the business of policing managers, perhaps it could provide a hiring checklist for managers as part of the paperwork for establishing employment. This would at least make the manager think about steps that may have been overlooked.
This situation also points out the need for an effective employee complaint procedure that bypasses an immediate supervisor when the supervisor violates the person's human rights. We would hope that this company has a policy guideline on appropriate employee conduct indicating that sexual harassment and other types of harassment, including racial and ethnic slurs, are prohibited. Many large organizations have new employee orientation programs that demonstrate appropriate conduct toward customers as well as employees. Further, a person hired as a manager cannot be expected to just absorb the culture through osmosis, but needs a management orientation as well.
The company's action of terminating Norbert was fully defensible. Additionally, Norbert had no grounds for an age discrimination claim, as demonstrated by the Newark EEOC office's admission of error. Even if there had been grounds, the Tulsa EEOC had no jurisdiction over Norbert's case since the incident occurred in Newark two years earlier. However, the company should have written documentation that clearly outlines the issues in Norbert's termination, so that any third party could get a sense of the problems that occurred during his employment. Terminations without documentation during probationary periods are more suspect than those for which a file has been built through progressive discipline.
Nevertheless, Al did receive good advice from Marianne once he brought Norbert's situation to her attention. It was particularly wise to interview the employees before implementing a decision to terminate Norbert. Unfortunately, Marianne's handling of the EEOC was flawed by her indiscreet reference to the overzealous neophyte officer in Tulsa as "sonny boy." Furthermore, she should have requested a second letter from the Tulsa EEOC office withdrawing its request to enter into settlement discussions. Get it in writing!
The primary issue here is whether Norbert's comments somehow created liability for his employer. The story also illustrates that liability for harassment in the workplace is not limited solely to sexual harassment. Rather, as Norbert unceremoniously demonstrated, it can be found in the form of racial, religious, and age harassment. While one stray racial, religious, or age-related slur will not always rise to the level of harassment, Norbert appeared to be well on his way to creating a harassing "hostile environment" liability for his employer. Norbert was a ticking time bomb. Given enough time, Norbert's bigotry may have exploded with his staff filing harassment charges against him and the company. Fortunately for the employer, Norbert's technical incompetence outshone even his bigotry.
This scenario also highlights the importance of doing reference checks on employees before they are hired and developing procedures to ensure that interviewers actually base their recommendations/decisions on job-related criteria.
A strong cautionary note: it is not good tactics to slur EEOC investigators, or any other investigatory agency. Marianne's "sonny boy" comment will not win her any points and may be, as a matter of law, discriminatory.
Marianne may think her torching ceremony officially closes Norbert's file, but that is not necessarily the case. Employers need to be mindful that each federal fair-employment practice law has its own record-keeping and retention requirements. For example, the Age Discrimination in Employment Act regulations require that employers keep records on employees for a period of three years. Another word of caution: even if the required retention period has passed, never destroy personnel records of employees who have filed a charge or lawsuit until after the final disposition of the charge or action. Even then, there may be strong policy considerations in favor of retaining such records indefinitely, for example, to show how similarly situated employees were treated in the same manner or to show that the company has been exonerated of discriminatory allegations.