Category Archives: Harassment and Discrimination

A claim of disability?

Amy recently wrote about issues of fragrance in the workplace, and how to protect people with these allergies.  That’s certainly a serious and legitimate issue.  I want to approach questions of disability accommodation from another angle.

The detials in the following have been changed, but the issues are ones I recently encountered in an investigation I was conducting.  Jane (not her real name) brought allegations that her new supervisor is discriminating against her based on her disability (she has difficulty sitting for long periods of time.)  She’s made this complaint because suddenly, after nearly 11 years with the same employer, she’s receiving poor performance reviews when her work hasn’t changed.  So, since there’s no other obvious basis for a poor review, it must be discrimination – right? 

When I speak with Jane’s new supervisor (he’s been there about 18 months), he tells me that everyone always complains to him about Jane: she’s rude to customers,  her co-workers have a hard time getting her to cooperate on anything, and because of her disability she’s away from her desk a lot.  I discover that she has never formally requested an accommodation for that alleged disability, but everyone assumed that since she said the doctor told her not to sit for long periods (undefined) they simply had to accommodate that, especially after she told them she’d sue if they didn’t accommodate her. 

And, of course, when I looked back at Jane’s years of performance reviews, guess what? She was consistently marked “above average” or “outstanding” in every category with no comments in any way indicating there were any issues.  No wonder she’s surprised there are issues!  The first year Jane had theese undocumented issues they were Jane’s problem.  Every year thereafter they are the supervisor’s problem.   

So, what to do now?  There are a few basic steps you in management need to take:

1.  Provide Jane with a well written job description to take to her medical provider.  She needs to ask that person to write a letter specifically stating what kind of accommodation is needed.  For instance, just saying “Jane can’t sit for long periods of time” is inadequate.  How long can she sit before she needs a break, and how long does that break need to be?

2.  Once you have this information, determine whether you can accommodate Jane and still get the work done.  For example, if Jane has a desk job but can only sit 10 minutes at a time before needing a 10 minute break, you may need to get her a stand-up desk since it is unlikely she’ll be able to accomplish all her work in half the time.

3.  You need to work with the new supervisor to ensure that performance expectations are clear and reasonable, and that they are communicated to Jane.  New supervisors get to have different standards and expectations – as long as they are reasonable and Jane has a reasonable length of time to adapt to them.

 Finally: make sure that you act on the basis of fact, not fear.  Just because Jane says she needs accommodation does not mean that she does.  Get the medical provider’s request and follow the steps.  Be respectful, but be clear that you have the authority to run your organization.  And, never, NEVER yield to intimidation: do your homework, but then if an employee threatens to call their lawyer or the rights agency, please hand them the phone.

 Thoughts? Questions?  Let us know!  ~ Daphne Schneider



Bullying? Maybe not…

A colleague asked me the other day whether I think there are more lawsuits and more formal workplace complaints than there used to be. I think there are, and one of the things that’s increased dramatically over the past years in my work is more complaints for harassment and bullying against coworkers. Though some of those complaints are clearly valid and serious and need to be addressed in a legal/investigation context, many of the others I see are something else entirely.

Please don’t misunderstand me: bullying is a real and serious issue, a legitimate problem. When one person targets another on the basis of race, gender, religion or any number of other reasons and makes his or her life miserable with taunts, comments, sabotage, malicious gossip or threats – that’s bullying and harassment (at a minimum).  When that’s going on, you need to either address it directly or with assistant from management or human resources.

However, I get worried when I see the word “bullying” so often tossed around and people labeled as bullies when what they’re really doing is essentially behaving badly (they never went to manners class). Unfortunately, there are lots of people who are rude, obnoxious, obstinate, unfriendly, unwelcoming, discourteous, insensitive and otherwise  ill-mannered.

Here’s the sort of thing I’m talking about:

– Susie, the administrative assistant who makes it very difficult for anyone to give her work to do (though doing work for others is her job) by purposely misunderstanding directions and repeatedly getting things wrong.

– Art, the analyst, who constantly interrupts, speaks way too loudly, towers over people (he’s bigger and taller than most everyone and stands way too close).

– Yusuf, a senior employee, who is constantly telling people how to do their jobs because he’s been there a long time and believes he knows all.

– Carlotta who gives out lots of unsolicited advice, spreads gossip constantly and wants to be in everyone else’s business.

So, are these bullies? No, they’re not. They don’t target specific people (one of the definitions of bullying behavior). They’re just generally hard to work with because they have bad manners, are rude and arrogant.

So, if you work with one of these folks, should you file a harassment and bullying complaint? No. You should become assertive and address these behaviors directly.  Even though confronting them may be uncomfortable, it will very likely result in changed behavior.  I’m going to bet that most of the folks who behave this way have never been called on it, so keep doing what they’ve always done.  So, with the above coworkers:

– Be clear in your instructions to Susie, and tell her you expect the work to be done correctly. Follow up and have her re-do it until it’s right. She’ll get tired of that and start doing it right in the first place.

– Politely ask Art to back off, or sit down. Don’t allow him to interrupt – tell him you were speaking, and need to finish (it’s likely no one has ever said that to him before!)

 – Express your appreciation to Yusuf  for providing history, and tell him that you will do things the way you believe to be best, and don’t argue (don’t give him the opportunity to browbeat you into compliance.)

– Stop listening to Carlotta when she gives advice or spreads gossip. Tell her you don’t have time, and go back to your work. A lack of an audience may well tame her inclinations.

There are many other examples of bad behavior at work that are simply that – bad behavior at work. Learn skills to address people who act this way, rather than filing formal complaints. But do make a formal complaint if real harassment and bullying is going on – and learn to tell the difference.

Have you encountered bad behavior at work that may have felt like bullying but wasn’t really? Tell us about the “equal opportunity” rude coworkers you’ve encountered and how you dealt (or should have dealt) with them. ~Daphne Schneider

The Corroboration Myth

Perhaps the scariest investigation scenario for an employment investigator – be it an HR person, a manager, or an outside independent – is the classic “He said. She said.” This is the situation where two parties dispute what happened between them and there are no witnesses to the incident.

Many think that without corroboration, it’s just not possible to determine what happened or who is telling the truth. While at times this may be true, it’s often not. The application of credibility factors and a little common sense can go a long way toward deciding what happened.

First, a story. Many years ago I did a sexual harassment investigation. A few weeks later, the accused party called me and said he’d been fired. He then asked if there were any witnesses to the alleged harassment. When I said no, he asked how I could say what had happened. My answer: “I believed her.”

Following are some of the factors to consider when determining witness credibility:

  • Whose story has the most details? A more detailed story is often more credible than a vague or general one.
  • Who has a motive to lie? Typically, this question is asked about the complaining party (why would he or she make this up?) since the accused inherently has a motive to lie. But it can apply to the accused as well as witnesses also.
  • Is the story internally consistent? A credible story is internally consistent.
  • Is there contemporaneous documentation of an event? The key word here is contemporaneous since documentation created months or years later may be helpful, but will not necessarily lend support to the truth of the facts stated in the documents. Too much time has elapsed.
  • Did the party tell anyone about it contemporaneously? Again, if one of the parties talked to someone else very close in time to the event, this may be useful as corroboration of that party’s story. I’ve seen this operate very powerfully. It doesn’t always though, particularly if the party in question has perception issues.
  • Is it likely there would be corroborating evidence if the event occurred? If such evidence is missing, that may be significant. One party alleges that that other was screaming at him. If no one else heard it – and there were people around at the time who should have – maybe the screaming didn’t occur. “Scream” is a rather subjective word anyway….
  • Whose perceptions seem most accurate? Often, no one is lying per se. Witnesses just have different perceptions. The issue then is: whose perceptions seem most accurate based on all the circumstances. Here’s where common sense and putting all the pieces together come into play.
  • Who has access to information? Sometimes the winner is the one with the access to the best information.
  • One clear lie. Sometimes, if you catch a witness in one clear lie, that will cast doubt on other things they said. The lie has to be significant and not just something the witness could have remembered incorrectly.

So is this a recipe for determining credibility? Sadly, no. It still takes judgment, and the courage to take a position. Just tell yourself that the buck has to stop somewhere.

Do any of you have other useful credibility tools?  ~Amy Stephson

Worst Bosses of 2010

I recently came across a website that lists the alleged “Worst Bosses of 2010.” Now ,it’s not a scientific study, and it’s based on submissions by thousands of individuals around the country to the eBossWatch website (whose tag line is “Nobody should have to work with a jerk.”). That said, I continue to be stunned (I know, I should be less naïve – especially given the work I do) by what bosses do in this day and age.  A few striking examples from this site:

• Sexual harassment: “no honey, no money” was one of the comments from a male boss to his female assistant – and you thought the casting couch was a thing of the past!

• Racial harassment: the white boss saying it was “just a joke” when he discussed the marks a rope would make around an African-American employee’s neck

• Assault, as well as sexual and racial harassment by the female African-American boss who tried to run over a white, male employee in retaliation after he alleged that she called him her pet dog and snapped her fingers at him saying, “Come here, white boy.”

And, lest you think that it doesn’t happen around here, state of Washington bosses landed tsix times on the top 100 “Worst Bosses of 2010.” . The honorees were:

# 8: Don Gough, Mayor, City of Lynnwood for sexual harassment and the creation of a hostile work environment.  A number of his female employees have accused him, and the City recently settled a lawsuit for nearly $50,000 with several of them.

# 17: Three managers of the Evans Fruit Company in Sunnyside were named in a lawsuit by the Equal Employment Opportunity Commission (EEOC) for “sexual comments, propositioning and physical groping” of female employees, including a 15 year old.

# 43: Greg Lassiter was fired as Snohomish County Planning Director for exposing himself to a woman during a golf tournament.  His behavior recently resulted in the County’s settling a lawsuit for $600,000. His Deputy Planning Director, Greg Morgan, was named #56 on the “worst bosses” list for helping create a “Harley club” for male managers whose members allegedly regularly left work early, got drunk, rode their motorcycles, and supported one another in firing and promoting favorites.

# 86: In a letter from her colleagues to the site, State Senator Pam Roach was chastized for “an ongoing pattern of treating your co-workers and employees with hostility and anger. As your fellow Senators, it is difficult to be in a room with you when you erupt in anger. For our employees it is unacceptable.”

So, most unfortunately, we in Washington are well represented here. As we close out 2010, I’d challenge each of us to make sure that we would be found on a “best bosses” list because we understand our own power and use it for good by

• Setting and modeling clear, high standards for workplace behavior and civility, and expecting and helping all employees meet them

• Treating all employees fairly and equitably

• Demonstrating caring and compassion for staff and customers/clients

• Helping all employees meet the organization’s goals as well as their own professional goals

• Supporting the greater community by giving back and encouraging our employees to do so as well.

Wishing you all a wonderful holiday and a great 2011! We’ll be back next year. ~ Daphne Schneider

Communicate face-to-face, with empathy…

The Problem:  Harold, a good employee, had taken a lot of leave in recent months, usually a day or two at a time.  Sue, his supervisor, didn’t think he seemed sick at all, and didn’t know what was going on with him.  She was a little afraid to ask; she didn’t want to invade his privacy.  But the amount of time he was missing was really starting to interfere with the team’s work – and others were complaining about having to pick up his workload.  Sue really needed to know whether he’d be back and doing his share of the work soon, or whether she needed to think of some other way to get the work done.

What Sue did:  In an effort to address the team’s needs and plan out the work, Sue decided to write Harold an e-mail about his absences.  Here’s what she said:

Harold, I know you’ve been gone a lot.  Your absences have really impacted the team’s ability to get the work done.  You know we have to get this project done on time and on budget.  I need a commitment from you that you’re going to be here on a regular basis, or I’m going to be forced to let you go even though I don’t want to do that.  I need someone I can depend on.  Please get back to me by the end of the week and tell me your plans.

Here is Harold’s response: 

Sue, I can’t believe you’re threatening to fire me.  I’ve done a lot for this team over the past several years, and you know it.  Just because I’m turning 60 and have a couple of health problems that have forced me to miss this work I love, you want to get rid of me.  Wait till you’re my age, you’ll see.  I won’t accept this kind of treatment from someone half my age.  You need to know I’m talking to a lawyer.  This is age discrimination, plain and simple.

What happened here?  The first thing that happened was that Sue decided to address a serious issue by e-mail.  And, rather than expressing concern and empathy, her very matter-of-fact statements about needing to finish the project on time and under budget (true) and needing an employee who would be able to commit to helping with that (also true) backfired.  Harold quickly became defensive, grabbed at the nearest thing he could think of (it must be age discrimination) and responded to what he felt was her threat with one of his own.

A much better approach would have been for Sue to sit down with Harold in a quiet, private, unhurried setting, express her concern and solicit his help in figuring out how to finish the project.  He would have felt valued, heard, and engaged in creating a solution.  Even if in the end he would have needed to leave his job, he would have done so with positive feelings – and likely no lawyer or discrimination charge.

Remember: We sometimes write when we should communicate face-to-face, talk when we should listen, and state facts when we should be expressing empathy.  There is always time later for writing and stating facts.  Start with empathetic human communication.  It takes a little more time at the beginning, but goes a very long way to creating a better workplace and saving time in the end.

Have you ever gotten an e-mail when you should have been invited to a conversation?  Tell us about it!  ~DS

When a “Hostile Work Environment” Isn’t

Over the years that I have been a consultant and investigator, I have sometimes been called when staff members go to management with a complaint that their supervisor has created a “hostile work environment” for them. As I interview the complainants, they tell me the supervisor

– regularly speaks harshly to them or yells at them

 – has favorites and is unfair

 – belittles them

 – frequently fails to communicate, or communicates inadequately.

I often discover that the supervisor behaves this way to all subordinates regardless of gender, ethnicity or age. She may be an ‘equal opportunity bully,’ or she may just be an inept supervisor. And, when I speak with the supervisor, she is shocked and hurt that staff see her this way, and denies that she yells, is unfair or belittles anyone. She also tends to believe that she is a good communicator. By the way, she’s well regarded in her profession, has been in this position for years, and if anyone has ever told her there’s a problem they’ve not done so in a way she heard…

 What’s the real issue? This is not a legal problem. It’s a skill and supervision problem. Thus, although staff may have brought a complaint under a legal discrimination label (the creation of a ‘hostile work environment’ is only a legal issue if it is an outgrowth of discrimination), this is not a discrimination issue since the supervisor treats all staff this way. But it is a problem, and still needs to be addressed.

What to do if you’re the manager: So, if you’re the manager to whom the supervisor reports, you do need to take this seriously even though it’s not a legal issue, because this supervisor’s behavior costs the organization. Staff who are feeling mistreated are less productiveand make more mistakes: they spend work time talking about how awful things are rather than producing, and often respond to work issues from a basis of fear rather than professionalism (see Driving Fear out of the Workplace, by Kathleen Ryan and Dan Oestreich). Further, a poor supervisor is the number one reason for employee turnover – but only those employees who are good enough to find work elsewhere will leave; the less competent employees will stay with you because they can’t find anything else. Since this supervisor is well regarded technically, you’ll likely want to keep the person on. If the position cannot be restructured to remove supervisory responsibilities, the manager needs to help the supervisor by

 – clarifying behavior expectations, and providing a timeline for behavior improvement and skill development

 – providing supervisory and communication training, with follow-up to ensure the training is implemented

 – providing ongoing mentoring

– bringing in a coach.

And, the manager needs to assure the staff that they were heard and that the issue is being addressed, and request ongoing feedback to know how things are improving.

But what if you’re a staff member with a supervisor who has these issues, and you feel powerless to do anything about it? We’ll address that next time…

Meanwhile, let us know how you’ve dealt with these issues! ~DS

Dealing With Distorted Perceptions

The Problem.  Each of us sees the world through our own lens.  Inevitably, this means that different people will interpret the same event differently.  It also means that in many cases, “perception is reality.”  Employers and managers can live with that – they have no choice – and it’s an essential principle to keep in mind when navigating the waters of employee relations, motivation, and communication. 

What can create more difficult problems is when an employee’s perceptions cross the line from individual to distorted.  By this I mean situations where (1) there is a reality; (2) the employee has an alternate, incorrect view of that reality; and (3) the employee genuinely believes his or her perception is correct.  

Over the years, I’ve seen this many times: The manager who drives his people crazy by thinking decisions have been made that haven’t.  The employee who sees every negative action as discrimination or harassment.  The employee who sees even positive actions as discrimination or harassment!  Anyone who has conducted a workplace investigation has met this person. 

In situations such as these, it may not be that difficult for the employer to validly decide that the employee’s view is incorrect, or in more formal terms, “not substantiated by the evidence.”  Where the real difficulty comes up, however, is what to do next.  Among the possible problems: 

  • The employee tenaciously holds onto his or her distorted perceptions and keeps them brewing
  • The employee’s distorted perceptions may reflect a mental disability of some kind
  • The employee’s targets remain angry at being falsely accused of wrongdoing
  • The employer believes the employee should be disciplined for making a false allegation. 

The Solution.  Following are some suggested approaches to the above problems. If you have other ideas, we’d love to hear them! 

  • Faced with the complainant who just won’t quit, an employer can tell the employee that he or she may talk only to HR, the union, or other named representatives about their concerns, not co-workers. 
  • If the employee’s distorted perceptions may reflect a mental disability, the employer must treat it the same as it would any workplace disability.  Consultation with a disability expert or attorney may be helpful.
  • The employer should certainly inform any accused parties that the evidence did not support the allegations and no wrongdoing on their part was found.  If the complainant is not holding onto misperceptions too strongly, it may be helpful to have a facilitated discussion between the complainant and the accused.  During this discussion, each can explain why they did what they did and how the other’s actions made them feel.  The two can develop a plan for moving forward.   
  • Sometimes an employer feels it just can’t say, “Perceptions will be perceptions” and let a false allegation go because the situation is so egregious that some sort of discipline seems warranted.  The danger here, of course, is that the employee will claim retaliation for filing a complaint.  In cases such as this, the employer should consult with a legal advisor to determine the risks and benefits of discipline.   ~AS