Favorite Firing: When a Customer Harasses an Employee


adult-15814_1280The usual adage in American businesses is “the customer is always right.” And usually that is true. I’ve posted on a few occasions about the need for many organizations to improve their customer service. But it isn’t always true. Sometimes the customer is dead wrong. Today’s “favorite firing” is about a case where the customer was wrong, and then an employee alleged she was treated improperly when she complained about the customer’s behavior. After the alleged retaliation, the employee quit. So strictly speaking, this is a constructive discharge case, not a firing.

The Facts: In Prager v. Joyce Honda, Inc. (Aug. 22, 2016), Nicole Prager, a 20-year-old receptionist at the Joyce Honda dealership, complained to her managers that a high-profile customer pulled on her shirt and revealed her bra. There was no doubt as to what had happened, because the incident was caught on the dealership’s surveillance tape.

Her managers discouraged her from filing charges against the customer because he was a really good customer who had purchased 20 cars over the years and regularly had his cars serviced at the dealership. Despite her managers’ cautions, Ms. Prager did file charges. In fact, once she made the decision to file, the dealership managers called the police and provided an office at the dealership where she could talk to the police. (Later, the customer pleaded guilty to offensive touching and paid a fine.)

After she filed the charges, Ms. Prager alleges that some of her her co-workers began behaving coldly toward her. In addition, she received two written warnings for leaving work early on two occasions. One of these occasions occurred prior to filing the complaint against the customer and the other was an incident after she filed the charges. She objected to the reprimands, saying they were retaliatory and that she had left work early before without being disciplined. Her managers said they reprimanded her because she had not communicated about her leaving early on these occasions, as she had in the past. Nevertheless, the employer offered to rescind the disciplinary warnings, but Ms. Prager resigned instead.

In her lawsuit claiming retaliation and constructive discharge, Ms. Prager alleged that the dealership had become a hostile workplace environment for her, which justified her resignation. The trial court dismissed Ms. Prager’s lawsuit, saying that employers were not responsible for the conduct of customers in the workplace. Ms. Prager appealed.

The Appellate Division in the New Jersey courts also rejected her complaint, although the Appellate Division said that filing a police report against the employer’s customer was a protected act. However, though she could state a claim for retaliation, she had not sufficiently alleged a retaliatory consequence in her complaint—she had resigned immediately after receiving the reprimand and the dealership had offered to make the reprimands go away. The court said

“no reasonable juror could find that conduct ‘so intolerable that a reasonable person would be forced to resign rather than continue to endure it.’”

The Moral: Any complaint of harassing behavior by an employee should be taken seriously. And once an employee complains, the employer must be careful not to retaliate. Those are givens. Moreover, managers should be supportive of employees who complain and who decide to take their complaints to higher authorities, whether those authorities be internal company investigators, administrative agencies, or external law enforcement.

In this case, reading the Appellate Division’s opinion is instructive. It is clear from what the court says that part of the problem was that this employee was young and inexperienced in dealing with harassment and the follow-up complaint process. Her managers did not help the situation—they did pressure Ms. Prager not to complain about a valued customer, though they ultimately did support her. This case is a good reminder that we take our employees as they are, and must adapt our responses in some respects to their unique circumstances.

The timing of the warnings to Ms. Prager was unfortunate at best, and possibly retaliatory, though the court held that the two warnings in this situation were not sufficiently retaliatory to support constructive discharge. The management rationale for the warnings—that Ms. Prager was not communicating with them—probably should have been dealt with through a verbal discussion, at least initially, saving the heavier discipline of a written warning for a later occasion more distant from the harassment.

Nevertheless, there is good news for employers in this case, namely that constructive discharge is difficult to prove. If managers show an ongoing willingness to work with an employee in reasonable ways, it will be hard for the employee to prove that the workplace is so intolerable that he or she must resign. While any disciplinary action against an employee who has complained of discrimination or harassment should be carefully considered, it is appropriate to hold employees accountable for their performance and for following reasonable company policies.

When have you dealt with allegations of constructive discharge?

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