Documentation not enough: Mouthy manager lands company in court
March 10, 2009 by Sam NarisiPosted in: Discrimination, Special Report, Terminations
A recent case is a reminder that working in HR is often like herding cats — once you’ve got managers doing one thing right, there’s a chance they’re making mistakes in another area.
In this case, the manager kept all his documentation in order, but still managed to cause big trouble for the company.
An employee was disciplined for several behavior and performance issues. Over the course of a year, she was:
- given a negative review for failing to get work done on time
- warned about her attendance
- suspended for falsifying time records, and
- warned in writing for not following the employer’s procedures.
Eventually, she was suspended again for failing to perform some of her job duties and placed on a performance improvement plan. The company gave her one more chance to correct the problems.
In her next review, her manager described her performance as “marginal.” The supervisor brought the situation to his boss and the employer’s HR manager, who made the obvious decision: The employee was fired.
Sound reasonable? The employee didn’t think so. She claimed her boss disciplined her and gave her negative reviews because of her age and sex. She pointed to several comments he made to her, including, “Women are good for one thing and that is sex,” and, “They’re too old to do their jobs well anymore,” referring to two of the woman’s co-workers.
Didn’t make decision
The employee took the issue to court. The company tried to have the case thrown out, arguing that the manager wasn’t involved in the final decision to fire her. He brought the problems to the attention of his supervisor and HR, and they made an unbiased decision based on his documentation.
But that didn’t matter to the judge. Even if the final decision-makers weren’t biased, the woman wouldn’t have been fired without the actions her manager took. And, based on his discriminatory comments, the court believed she’d been repeatedly disciplined because of her age and gender.
The court refused to toss the case, and the now company will have to defend itself in a costly jury trial or pay an expensive settlement.
Stay out of trouble
Here are some steps HR can take to prevent one rogue supervisor’s biases from causing big legal trouble for the company:
- Investigate. As this case shows, sometimes it’s not enough for a decision-maker to rely on a front-line manager’s assessment. It’s often necessary to ask for the employee’s side of the story before taking any action.
- Train regularly. Managers need to understand how the things they say can be interpreted by employees — supervisors have gotten in trouble over less outrageous comments than the examples in this case.
- Follow up. After training, make sure supervisors who still give the impression of bias are disciplined.
Cite: Lanahan v. Southern Nevada Health District
Tags: age, documentation, sex discrimination, supervisor
March 11th, 2009 at 9:07 am
Unfortunately, it sometimes doesn’t matter whether or not the manager mouths off. I would have sworn this story was about something that happened to us…all our documentation was in a row, we fired an employee, and she sued and we settled (she won). You MUST be careful when terminating older employees. I think it’s safer just to let them die of old age.
March 11th, 2009 at 12:50 pm
Speaking of “mouthy” managers; George’s last sentence may explain why his company lost its case! If this is his attitude, I would expect big trouble in the EEO arena.
March 11th, 2009 at 12:54 pm
George! Your comment is hilarious, just what I needed this morning. We are currently going through lay-offs and treading water through the laws enforced by DFEH. Coaching managers on what to say during a lay-off meeting is key but they don’t always stick to script. My firm (65 employees) announced lay-offs and furloughs and within a week HR had a workers comp claim, a harassment claim and two retaliation claims whereas the department was quiet for 6-months before the announcement. It’s hard not to be cynical when it seems that employees are grasping at any straw available in order to try to keep their jobs or to put in claims in order to try for a big settlement/severance.
March 11th, 2009 at 12:57 pm
Can’t government EVER do anything right?
March 11th, 2009 at 12:59 pm
With comments like that George, I believe it may have been your company too.
March 11th, 2009 at 1:31 pm
Oh come on people! George’s comment was funny! If you’ve been in HR for any length of time you have to see the humor (and unfortunately the merit) in his remark. My company has also been through the “restructuring” and the “reorganizing” stages this past year. Now we have just moved on to the “FOR SALE” portion of the program. I’m hoping people realize there is very little value in filing a claim against a company that will not exist beyond the end of the month.
March 11th, 2009 at 1:44 pm
I am very new to HR, but what I’ve noticed is that with layoffs you need to move swift and tactful and cut deep and only once. It also helps to have Severance Agreements in place a head of time. “Loose lips might sink Ships”
March 11th, 2009 at 2:14 pm
Melanie – this is government we’re talking about – they never go away. George’s comment was funny – and I’m an old geezer.
March 11th, 2009 at 2:19 pm
I love HR, but dealing with so many desperate people, in this climate, is enough to make you lose your sense of humor!
March 11th, 2009 at 2:21 pm
Didn’t mean to stir you guys up. That case made me a bit cynical – this woman was lazy to the definition of the word, but she gets her “something for nothing.” The key is that you need to be more careful than you should have to be – and possibly more careful than you can be. If someone cries “discrimination,” YOU LOSE.
Good luck, Melanie.
March 11th, 2009 at 2:42 pm
George, you were funny, anyone who took it the wrong way is the reason HR professionals are always seen as sticks-in-the-mud by everyone else in the company! I’m sure what you post to this audience is not what you say to subordinates. But we have managers in our company that make comments much like this article’s manager, and when we admonish them, they think we’re …sticks-in-the-mud! It’s all about your audience, the context, and good old (not-so-common) common sense.
March 11th, 2009 at 3:59 pm
The HR part of my brain is thinking wow, how stupid and inappropriate some of the comments are! How can people in leadership positions be so stupid as to make sexist comments or disparage an employee because of their age? How did they get their position?
The rational yet oddly sarcastic part of my brain is wondering why, upon hearing that “women were good for one thing and that is sex,” she didn’t reply in kind with something like “men are only good for two things and neither one of them is sex.” Nothing defuses a ribald comment faster than a better one.
The analytical part of my brain is remembering that some philosopher once said that words only have the power we grant them. Unfortunately, today’s litigious society as whole has come to empower meaningless words with limitless … liability. Offensive comments, even when spoken tongue-in-cheek, are taken seriously not because they reflect the real feelings or behaviors of those who say or hear them but because the propensity of any party who hears them using it as an opportunity to file suit. People are on the lookout for ways in which they are being offended, discriminated against or otherwise disenfranchised. When talking to employees, we have to paint pretty word pictures, talk like were working with impressionable 6 year olds and run all written correspondence by the legal department first. Why own up to being substandard if you can prove that you were offended in anyway by your superiors in the workplace; the excuses are simply inspired, “I can’t keep up with production because my boss makes stupid comments.”
The evil side of my brain – where dark things live – is thinking … are you kidding me? I am morally and intellectually offended by the fact that my tax dollars are wasted on crap like this! It’s not about your ability to produce or do your job well; it’s about your feelings and your delicate psyche. Paychecks and are now like soccer trophies for 5 year olds; everyone gets one just for showing up – and nobody can ever be kicked off the team.
If only we could mandate common sense.
March 11th, 2009 at 4:07 pm
For a while things did improve. The various state divisions of Human Rights were becoming more reasonable and seemed as though they were actually starting to understand.
The background details of the article are brief and I am sure that there was more to the story than has been printed.
Bottom line Human Rights complaints are one of the best ways to get even with the employer when disciplinary action results from an employee not doing there job and it ALWAYS boils down to money $$$$$$$. So just bring your checkbook with you when ever you have one of these cases. The state does not understand uncooperative, bad workers who use a protected class as a way to extract money from an employer.
March 11th, 2009 at 4:15 pm
I bow to the evil side of your brain, Lisa. Common sense isn’t even common in the laws we make. You know where it all started? These were children who found out they could sue their parents for administering a well-deserved whooping! Way to go, US legal system – let’s show the rest of the world how civilized we are! Brilliant!!
March 11th, 2009 at 4:19 pm
Loved your comment Lisa! Well said! I bow to your ability to comment thoughtfully while still expressing a strong opinion.
Hang in there George, no reason to apologize, your comment was too funny and made my day.
March 11th, 2009 at 5:10 pm
Lisa…..your words are PURE POETRY. I am going to print them out and hand them on my wall in place of the “Teamwork” kayaking picture.
March 11th, 2009 at 8:28 pm
Lisa
That was a great comment. Not sure I agree with it all but it certainly was well thought out. Well. . . maybe I agree more than I want to admit.
March 12th, 2009 at 8:27 am
And to think it will only get worse as the “its all about me and making me feel good” generation from the helicopter parents are just now beginning to enter the workforce! Maybe we will have to have Parent-Employer conferences when we upset them because, yes, we do expect you to work an 8 hour day and produce this amount of production. Lord help us all!
March 12th, 2009 at 8:56 am
Is it just me, or is the world (business, government, politics) mirroring TV westling shows more and more…..?
March 12th, 2009 at 8:58 am
Ok. . . .someone tell me what is a ‘heilcopter parent’? Never heard that one before.
March 12th, 2009 at 9:01 am
Interesting discussion as I am preparing to layoff. We are a small NPO and I agree Stefan that layoffs need to be swift and decisive. Not long drawn out. My struggle is whether we will get sued over letting a long time employee (read older) go due to their higher cost and unwillingness to cooperate with change or newer, lower cost employees who by virtue of the fact that they are the last hired and won’t question being let go but we would have to let go of two of the newbies instead of one longer term employee. FOrtunately there is not a big difference in age for any of them.
March 12th, 2009 at 9:16 am
Keith – as you realize – everyone wants to be a “victim” these days and will seek redress for any perceived slight.
John: a helicopter parent is one who is over-protective and hovers around their precious snowflakes so that they can’t even scuff their knees without taking them to an emergency room and then filing suit as a result.
March 12th, 2009 at 9:23 am
OMG – not the precious snowflake! LOL
Man, this thing took on a life of its own! Hot topic by chance?
March 12th, 2009 at 9:38 am
Snowflake! That one I’ll remember! Thanks Larry. That seems a perfect definition.
Jim, I like that idea. I think I’ll do the same thing. Kudos Lisa! You are the hit of the board!
March 12th, 2009 at 10:41 am
Lisa, what happens when, as an HR Mgr., the ‘evil’ side of your brain takes over? We’ve had layoffs, salary cut backs, no OT, no 401K match, hiring freeze and more, BUT the senior management members of our only 60 ee company have not given up ANY perks. In fact, I just cut a bunch of checks for generous IC bonuses… while the rest of us just hang in. Here you go… ‘Former HR Manager seeking reasonable and enjoyable work climate where common sense prevails.” Oh well, I can dream can’t I?
March 12th, 2009 at 12:43 pm
I am 62-years old, have been in Human Resources for over 30 years. I couldn’t agree more with Lisa. And I thought George’s comment was one of the funniest I’ve heard!
My employees love me because I am NOT the “stick in the mud” HR person they loathe. I’m funny, straightforward, think creatively, and use “un”common sense in every decision. They trust me to do the right thing, even if it means it may not go their way. But I never dissillusion myself into ignoring that it will always end up being about dollars because today’s workers, no matter what the age, are focused on personal gratification, entitlement, without responsibility. There are, of course, the rare exceptions.
One thing I learned early in my career, and share often with employees:
- Everything in life is a choice (should I brush my teeth, get a dog, show up for work, do a good job, etc.?)
- Every choice has a consequence.
- Every consequence requires responsibility (to repair negative results or enjoy positive results).
- Which then becomes another choice.
March 12th, 2009 at 9:13 pm
Wow, I really gotta lay off that extra pot of coffee after lunch! I left the word “jobs” out of the next to last sentence; it should have read “Paychecks and jobs…” I’ve searched long and hard for a valid excuse and the only thing I can come up with is: “I make errors because my boss doesn’t hug me enough.” Yeah, that’s it … professional estrangement and withholding of affection! (she’d get a kick out of that one)
Thank you all for the positive feedback; it helps to know I am not alone in the HR wasteland.
-Lisa M.
March 13th, 2009 at 11:46 am
John – if you’ve never encountered a “helicopter parent” before you are lucky! These are the parents of the younger generation entering the workforce. They hover over their kids, who are now technically adults aged 18-25 approximately, like a helicopter. They come with their kids to job interviews, they call us in HR to help to negotiate the offer of employment, they call the supervisor to find out why their child was disciplined (up to and including termination of employment). It can be extreme.
March 13th, 2009 at 12:27 pm
Well HR in Ohio, I’m so glad to hear I’m not the only one that has had the “helicopter parent” experience. I don’t discuss employment information with parents and I am just amazed at how irate they become. I have to inform them that while this is their child, it is our “adult” employee and details regarding their employment are not up for a family discussion in my office.
March 13th, 2009 at 12:46 pm
Wow! I never heard of such! Maybe that’s my next challenge.
March 13th, 2009 at 12:51 pm
Indeed, HR in Ohio is correct; the parents often behave worse than the employee who was disciplined or terminated. These parents are cut from the same cloth as the pageant parents and stage mothers. They’re not interested in justice; they just want validation that their little “snowflake” is perfect.
By the way, thank you all for overlooking my error in the next to last sentence in my original response. I left out the work “jobs,” it should have read “Paychecks and jobs….” I’ll try to eliminate that extra pot of coffee after lunch.
Back on the topic at hand; I was wondering about one thing that was not mentioned about the sexual and age discrimination portion of the complaint. I’m thinking that the employee has a certain amount of responsibility to report these incidences in a timely manner. How convenient that it only came up after the termination. Surely there isn’t really a loophole big enough to drive a Hummer through? If this is the case, any terminated employee could scream discrimination after-the-fact and have that complaint held up as valid … “I got fired because my boss told me I was fat 7 years ago!” You give a bad employee an inch; they’ll demand they’re entitled to a mile plus punitive square footage.
This makes me want to rethink the whole HR career choice. Hmmm, I wonder if accounting has any openings?
-Lisa M. in Texas.
March 13th, 2009 at 12:53 pm
I’ve had employees come in w/ parents, spouses, girlfriends and I ask the others to wait in another room while I discuss issues with the employee. And Melanie’s right – some become irate. I had a mother come in recently (with her injured son) and start to berate me for her son’s injury. When I told her that he was injured through horseplay (he had lied to her about the injury) she still stuck up for him. Unbelievable. Needless to say when he came back from the injury we fired him.
March 13th, 2009 at 12:58 pm
Lisa – Title VII is the federal law prohibiting discrimination on the basis of gender. It’s general statute of limitations is 180 days. But, if you live in a state like New York, which has an agency dealing with discrimination claims, the statute of limitations is 300 days. But there is a quirk here, and some judges have said that the charge needs to be filed with the EEOC within 240 days.
It gets worse. If you go to the EEOC, and the EEOC issues a no-probable cause determination, there is a second statute of limitations that you have to deal with. This statute of limitations is 90 days from the date you receive what is called a notice of right to sue.
You also have independent claims under the New York State Human Rights Law. Under this law, the statue of limitations is 1 year if you go to the New York State Division of Human Rights or a local commission on human rights. If you decide you want to go to court, you have 3 years to bring a claim.
March 13th, 2009 at 1:05 pm
Lisa: I thought the same thing – where was the reporting of the harassment prior to termination? I’ve had a similar incident whereby we terminated a female employee for performance and she immediately filed with the EEOC claiming she was terminated because she was a woman. No prior complaint. We refused mediation and successfully defended our position. Didn’t hurt that the head of logistics, the Plant Manager, HR Manager, and Purchasing Manager are all women.
March 13th, 2009 at 1:08 pm
Don’t give up on us, Lisa. It doesn’t always make any more sense than the toss of a coin, and if you think you can always predict an employee’s behavior, please come to work for me.
March 13th, 2009 at 1:37 pm
My curiosity is now killing me … I’d love to know the time frame of the temination to the supposed comments made by the mouthy manager. I’d like to see the documentation on those complaints.
Thanks, Larry, for the tutorial. It does appear there is much room for improvement.
George, I’m going to try to stay with it. It’s a challenge and I like the research involved in it. Unemployment claims present me the opportunity to insert logic where emotions run wild. I’ve actually had great success in that arena. When the tears start flowing, I am reminded of the best line in the movie A League of Thier Own; “There’s no crying in baseball!”
Have a terrific weekend … Batter up!
-Lisa M. In Texas
April 9th, 2009 at 1:29 pm
George, your comment was funny..do not lose your sense of humor! I know we all work in HR but you need to keep your sense of humor when dealing with some of these people.
Lisa- your the bomb when it comes to your statement.
This is a senseless game that some people are going to play and as HR people we need to be ready and defend ourselves as well as we can, sometimes losing in the process. It happens with FMLA and Worker’s Comp. claims also and we just need to watch, learn, and prepare ourselves. But we must all keep our sense of humor about this, frankly some of these cases that go in front of the EEOC are just outrageous! We had one that we won by the way, where we were down sizing and moving people around and this lady said we moved her to another position because she was over 40 and a women. Mind you her Boss was over 60 and a woman! Also don’t forget the fact that she had lower seniority in that department and she cost our company over 1 million dollars in overage inventory…let’s not forget that. She had no foot to stand on and she lost the claim, because our Attorney, who by the way has a sense of humor also stated that she had nothing showing to prove this and that was like us moving her to another department because we didn’t like the purple jacket she wore one day…please!