Victories Like These Put Employers Out Of Business

Definition of a Pyrrhic Victory: “a victory at such a great cost that another such victory will lead to defeat.”

Lawyers are justly proud when they win a difficult discrimination or harassment case. However, after a couple of hundred thousand dollars in legal fees, disruption at work, and harm to reputation, an employer may decide that a few more similar “victories” could shut them down.

Therefore, as every CEO knows . . . the best lawsuit win is to avoid an EEOC charge or lawsuit in the first place.

Lawyer-blogger Eric Meyer recently posted a witty analysis of a court decision finding that an atmosphere of moronic and foul behavior would not alone establish same-sex harassment.  I want to talk a bit further about the lessons from this decision.

The U.S. District Court concluded:

The court agrees with the EEOC that Mike’s and Painter’s language crossed the line of social acceptability, even in an all male work environment. But, this court is unwilling to assist in the creation of a general rule that will expose all employers to Title VII suits like this one. The mission of EEOC is an important one, but it does not include the cleaning out of all boorish slobs in the workplace. Bad facts sometimes make bad law, but it will require action by Congress to take Title VII over the great divide that now exists between bad language and same-sex harassment . . . . A public policy against offensive language, if constitutional, would make the courts into world policemen.

Great! I agree with the Court.

But, let’s be clear . . . the crap going on in this workplace was unacceptable . . . . this behavior didn’t even fit into the “boys will be boys” category.

There was a culture of horseplay and off-color badgering in the all-male warehouse where [Plaintiff] Doe worked. Not only would the language used by many employees shock a bishop in his robe, but it would have been unpleasant and offensive to any person of tender sensibilities.

Doe says that in late 2004 or early 2005 this warehouse banter rose to an intolerable level….According to Doe, in 2005, Mike first referred to him as a “faggot,” and made similar comments almost every day up until 2007,,, Doe says that Mike’s comments included: “come here, fag,” “hey homo,” “look who’s here, d**k s**ker,” and “why does your breath always smell like a**?” … According to Doe, Painter made similar comments….Doe alleges that Painter regularly and routinely used expressions like: “faggot,” “queer,” “homo,” “d**k s**ker, “fairy,” “a** breath,” and go behind the tank and do what [you] do to other men.” … Such nasty talk, in and of itself, does not prove that the people who engage in it, and who aim it at others, actually believe, or have any reason to believe, that their listeners are actually homosexual or have homosexual propensities. The expression “ass breath” has no homosexual connotation. It sounds more like a comment on someone’s halitosis.
* * *
Doe was not the only person with whom this word game was played. Doe does not dispute this fact…Doe is 5’10” and weighs between 190 and 220 pounds. He has tattoos on his arms. He, as well as other male employees, wore earrings. Doe was married and had children. Doe did not carry himself like a woman or act in a manner that could even remotely be described as feminine. Doe testified in his deposition that he was “just as much of a man as anyone else” and that he gave this impression to everyone, including his co-workers. Mike and Tipton both testified that Doe did not look or carry himself in any way that would suggest femininity. Doe even bragged about his way with women. He gave no one any reason to doubt his manhood. He did nothing and said nothing to suggest that he was homosexual.”

It’s easy to say that this behavior could never happen in your workplace … but could it? What had the employer done to prevent this behavior.
The Fifth Circuit Court of Appeals made similar conclusions in EEOC v. Boh Brothers Construction L.L.C. (July 27, 2012) after allegedly similar conduct occurred in a construction workplace:
(Supervisor) would call (Employee) “faggot” and “princess” and would approach him from behind and stimulate having sexual intercourse while (Employee) bent over to perform job duties.(Supervisor) allegedly exposed himself to (Employee) numerous times. There is, however, no evidence that either man was homosexual….
However, obtaining this decision probably cost hundreds of thousands of dollars in fees, and even after the Fifth Circuit threw out the lower court’s decision, articles still continued to trash this respected company. I wonder if the complained of employees and supervisors still work there?

Action Points?
1. Don’t assume that it cannot happen to your business.
2. Men calling each other “gay” and acting like idiots is not okay just because they aren’t really harassing each other over sex.
3. I worked for years in my father’s warehouses, rigging and machine shops. I settled some disputes with my fists. But it is not the 70’s and the 80’s. Employers will get sued.
4. Even in the roughest work setting, do more than post a “No Harassment” policy. Train supervisors and make sure employees understand that even if they pump out septic tanks for a living, they had better act “professionally.”
5. Try to strike a balance, It’s the real world, but none of us think that the behavior described above is okay. Things didn’t become that way overnight. These businesses are probably good companies, but what could they have done to prevent this behavior?
6. The bottom line is that common sense is not common. We cannot focus simply on instructions “to not discriminate against or harass workers.” We have to make employees understand that the goal is not to get as close as possible to unacceptable behavior without tipping over into unlawful harassment or discrimination. Academic as it sounds, we have to train and expect all personnel to use that not-so common sense and to behave professionally.

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
This entry was posted in cultural changes, discipline and discharge, EEOC, government inspections, harassment and tagged , , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s