Foolish Comments and Inconsistent Appearing Discipline Get You Sued

Not just supervisors, but also Safety professionals routinely have to respond to or try to prevent various types of employment claims. Why you may ask?  Partly because the supervisor and employees figure that “regulations are regulations,” so the safety dude probably knows about EEOC requirements and anything that smacks of weird regulatory stuff.  Also, safety professionals often are accessible to employees and may learn of issues before other members of management.  Finally, designing job descriptions and JSA’s often involves ADA considerations, as does determining if an employee can return to duty following a workplace injury.  Safety professionals are also front line defenses to avoid and manage employment law claims.

So here are a few recent developments worth remembering . . . .

Don’t Live Up to Forrest Gump’s Explanation that “Stupid Is As Stupid Does.”

Let’s start with the problems created by foolish or thoughtless comments. A single arguably discriminatory comment generally does not alone prove discrimination.  However, that comment may be enough to get the plaintiff’s lawsuit past the employer’s summary judgment motion and before a jury.  In a January 2014 Federal court decision, the Judge allowed a claimant to take before a jury,  his FMLA claim by an HIV-positive manager in part because of a comment that “managers who take FMLA leave are useless.”  The decision is scary because you’ve probably encountered similar unwise statements in your workplace.  Oops.  I meant in your “competitor’s workplaces.”

I like Marie Symeou’s apropos comment:  “Life isn’t about just talking, it’s about thinking too.”  How about Haz rat Ali Ibu Abu-Talib’s remonstrance:  “Take care of your tongue like the way you take care of your gold and silver.”

Or as Mark Twain commented, “It’s better to keep one’s mouth shut and appear stupid than open it and remove all doubt.”

Appearing  Inconsistent Gets You Sued

In a Pittsburgh claim, the Plaintiff said that he was treated differently than a White employee.  The employer grabbed a woman’s rear and “placed his fingers near her private parts.”  He came up behind her and did this while the nurse was helping a patient “and he lifted her off the ground.”  The last time I checked, that’s an assault and battery, and never tolerable.  When she protested, he one-lined, “that was for Valentine’s Day, they call me walking chocolate.”  He should have been fired for that obnoxious line alone.

This guy made it past summary judgment because the Judge strained to conclude that White employee’s were not terminated after engaging in “similar conduct.”  He considered paramedics striking in self-defense,  drunken patients who were attacking them.

I think this decision was simply wrong.  But the point remains that you must check to ensure that you are being consistent in applying discipline, and if you do choose to deviate from past practice, document your good reasons for doing so.


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 ADA, discipline and discharge, discrimination, EEOC, FMLA, harassment, workers comp and tagged , , , . Bookmark the permalink.

1 Response to Foolish Comments and Inconsistent Appearing Discipline Get You Sued

  1. seo says:

    Your means of explaining the whole thing in this paragraph is genuinely nice, every one can without
    difficulty be aware of it, Thanks a lot.

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