Thursday, June 24, 2010

What do you do when the boss is accused of harassment?

Earlier this week, published an article entitled Bosses Behaving Badly. If you want an example of the type of misconduct the article chronicles, look no further than EEOC v. Fairbrook Medical Clinic (4th Cir. 6/18/10) [pdf], a sex harassment case decided last week. You really have to read the opinion to get the full picture of the degree and scope of inappropriate sex-based conduct in which the medical clinic’s sole owner, Dr. Kessel, was alleged to have engaged. Here’s some of the highlights:

  • Repeatedly showing off an x-ray of his penis, calling it “Mr. Happy.”
  • Referring to his wife’s “nice, tight pussy,” during a staff meeting.
  • Telling dirty jokes, which included imitations of kissing a woman’s breasts.
  • Frequently talking to staff members about oral sex and women’s breasts.
  • Using terms like “slut” and “cunt” to describe female employees.
  • Asking a female doctor if he could help her pump her breast milk, if he could see her breasts, and if he could like up some spilled breast milk.

The 4th Circuit, which is not necessarily known as being the most employee-friendly forum, decisively overturned the district court’s dismissal of the claim:

Activities like simple teasing, offhand comments, and off-color jokes, while often regrettable, do not cross the line into actionable misconduct. ... If they did, courts would be embroiled in never-ending litigation and impossible attempts to eradicate the ineradicable, and employers would be encouraged “to adopt authoritarian traits” to purge their workplaces of poor taste.... This case involves more than general crudity, however.… Kessel targeted her with highly personalized comments designed to demean and humiliate her.

This case, however, raises an issue above and beyond the difference between lawful workplace incivility and actionable harassment. The alleged perpetrator was also the sole owner of the business. If the buck stopped with him, to whom could an employee complain about his harassing behavior? In other words, what do you do when harassment reaches the highest levels of your organization? This question is a difficult one for businesses to answer. I’ll make a few suggestions:

  1. Any harassment policy should have more than one avenue available for an employee to complain, such as different people across different department.

  2. Additionally, employees should not be limited to complaining in person. Employees should be able to complain in writing, over the phone, or by email.

  3. Consider setting up a telephone or email hotline to log complaints.

  4. The owner, CEO, or other higher-up should be screened-off from any investigation, other than his or her investigatory interview.

[Hat tip: Daily Developments in EEO Law]

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