Tag Archives: workplace

Favorite Firings: Stray Discriminatory Comments by Management Complicate Litigation


operation-540597_1280In the Wolters Kluwer Legal & Regulatory newsletter for December 4, 2017, there were three cases reported that dealt with comments by management personnel about employees. In each case, when the employee sued, the employer was unable to get past a motion to dismiss or a motion for summary judgment. Thus, in all three cases, the company faced lengthy litigation that might have been avoided, had managers been more careful with what they said.

THE FACTS:

In Creese v. District of Columbia, Case No. 16-2440 (RMC), D.C.D.C., Nov. 11, 2017, a corrections officer alleged that he was fired because he was not “manly” enough. His supervisor had made a few comments such as, “[n]o pretty boys needed in jail, so you need to take your earrings out.” The judge found that plaintiff produced enough evidence of impermissible gender stereotyping to survive a motion to dismiss his Title VII and Section 1983 claims.

In Sestak v. Northwestern Memorial Healthcare, Case No. 16-C-6354, N.D. Ill., Nov. 28, 2017, plaintiff Sestak, a labor and delivery nurse, alleged age discrimination after she was discharged for cause. She claimed that an unidentified individual stated that “older nurses would have difficulty” complying with new guidelines because older nurses “are too slow and spend too much time with patients” and that one of her supervisors stated that “older nurses’ often have difficulty understanding when the mother and baby become separate patients.” The court denied the employer’s motion for summary judgment.

In Carter v. A&E Supported Living, Inc., Case No. 16-00574-N, S.D. Ala., Nov. 29, 2017, a nurse was removed from the shift schedule at a group home for intellectually disabled individuals and then sued for pregnancy discrimination. She cited supervisors’ comments to her as evidence that she was removed from her work schedule because of her pregnancy and/or the related “high risk” conditions that the supervisors believed her pregnancy presented. One supervisor stated plaintiff “was at risk to be hurt and [she] didn’t want that for her or her unborn child, for her baby; nor did [she] want to put the people that [the employer] serve at risk…” Plaintiff was required to provide medical documentation that it was safe for her and her unborn child for her to perform the duties of her position. The judge denied the defendant’s motion for summary judgment.

THE MORAL:

The general legal standard is that stray comments in the workplace do not automatically lead to violations of the discrimination laws. However, they can be evidence of a discriminatory intent. And, of course, the more egregious and frequent the remarks, the more likely courts are to find liability. I’ve written other posts (see here and here and here) about how supervisory comments can get their employers into trouble.

In each of these cases, the employer put forth nondiscriminatory reasons for the actions taken against the employee. But the existence of the supervisors’ comments about pregnancy or gender or age complicated the cases enough to let the judges refuse to grant the defendants’ dispositive motions. The employers may end up winning these cases, but they face lengthy and expensive litigation before they do. Settling the cases may prove to be the better option.

Moreover, in the environment we face today, with heightened sensitivity toward sexual harassment and discriminatory remarks, employers would be well advised to re-emphasize the need to avoid even casual comments about employees’ health, appearance, and any other topics that might touch on a protected status.

It’s a shame that we must be so careful in the workplace and avoid many topics of everyday conversation, but it’s the safest course. As demonstrated by these three cases decided by different courts in recent weeks, supervisory comments continue to present litigation challenges to employers. It is best to involve Human Resources and lawyers if there is any question about what topics are permissible to discuss.

What’s your opinion on the current state of conversation in the workplace?

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Filed under Diversity, Human Resources, Law, Management, Workplace

How to Avoid Burnout When There’s Always Too Much Work


work-2196609_640Memorial Day weekend is the traditional beginning of summer. In many workplaces the pace slows during the summer months—maybe it slows a little, maybe it slows a lot. For employees who are burned out, the more relaxed pace might help.

Still, in today’s 24/7 world, the slowdown of summer might not be enough. In fact, one of my most stressful times as an employee was one July and August when I was assigned to defend a major lawsuit. I had to take on this new work even though none of my existing work had gone away.

After a few weeks, I realized I couldn’t juggle the caseload I had. I was leaving the office completely frustrated every evening. Finally, I talked to my department head about how to reallocate the workload.

It was that or quit. I was that burned out.

A recent article in Fortune, “The Solution to Avoiding Burnout That Nobody Tells You,” by Laura Chambers, published May 10, 2017, tells of a time when the author’s supervisor told her she would have to learn to drop some balls to avoid burnout. This is counterintuitive for most high-performing employees.

Actually, author Laura Chambers describes a more nuanced approach to managing the workload than simply not doing projects. She describes two kinds of employees, the burnouts and the droppers, and says neither is ideal.

She says that when there’s too much work to accomplish, the best approach is to become a “communicating prioritizer.” She suggests identifying what you believe the top priorities to be, discussing them with your supervisor and team to be sure there is agreement on what the priorities are, then focusing on the highest priorities.

As a manager, Ms. Chambers says about her staff:

“When they communicate their priorities, it shows me that they’re on their game, they’re confident about where they’re headed, and I know I can count on them delivering with confidence. It also demonstrates that they’re managing their own work-life balance, rather than relying on someone else to manage it for them.”

Turns out, I didn’t do so badly in going to my manager to discuss what I could do and what I couldn’t. I was communicating, as Ms. Chambers recommends. However, in retrospect, I see that if I had offered more proactive suggestions myself on how to reallocate the work, I might have done better. My manager and I worked it out, but I put most of the burden of prioritizing on him.

And perhaps Ms. Chambers’s manager could have done better by helping her prioritize than by telling her to drop some balls.

How have you managed periods of burnout in your career?

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Workplace and Partisan Politics: Why Are the Rockettes Any Different Than Bakers or Pharmacists?


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Photograph by Seth Vidal on Flickr

Through the year-end holidays, one news story dealt with whether the Rockettes would perform at Donald Trump’s inauguration. First let me say that I’m not sure the Rockettes are the group I want to see during a Presidential inauguration, but be that as it may, their performance raises interesting political and workplace issues.

The controversy arose because some of the dancers did not want to perform in celebration of the election of a man they did not—and do not—support. After much discussion between dancers, their union, and the Rockettes’ owners, each dancer will now be able to individually choose whether or not to perform.

The reason some dancers objected to performing is the same reason many individual citizens and groups have objected to Donald Trump’s election—they dislike his opinions or his personality or his tactics. Some Rockettes indicated that President-elect Trump “stands for everything we’re against.”

Each individual citizen should have the right to hold such opinions and to voice those opinions. The question is, how far should each person’s dislike of a candidate, elected official, other public figure, or political position be permitted to take one in the workplace? Who decides whether the performance should ultimately take place—each individual worker or the management of the organization?

In this situation, we have workers—the dancers—who object to their talents being put on display for a cause they disapprove of. Yet, at least initially, their bosses told them the Rockettes had been hired to perform and they should therefore perform. The end result, however, is that individual workers can opt out of performing their job duties.

The same liberals who think this is a victory for the individual Rockettes would nevertheless force pharmacists to fill prescriptions for contraceptives and abortifacients that they think are morally objectionable. What is the difference?

And these same liberals who don’t think the Rockettes should be forced to use their creative talents for President-elect Trump nevertheless think that cake bakers and florists should be forced to put their creative imprimatur on LGBT weddings and other events that they do not approve of. What is the difference?

The difference is solely that these groups approve of the objections to President-elect Trump and they disapprove of businesses and employees who “discriminate” against liberal causes. This is hypocrisy; it is not the First Amendment (which has no sway in relations between a private employer and its workers anyway).

We are all going to have to watch our own hypocrisy in the months and years ahead.

This is not solely a liberal issue. It is also not only a workplace issue.

Conservatives will have to watch their own arrogance, now that they control the White House and both houses of Congress. While Republicans do not have a filibuster-proof majority in the Senate, as the Democrats had from 2008 through 2010, Republicans are still going to have to avoid the arrogance that Democrats displayed during that period.

“I won” is not the end of the debate. We will have a better result if our government works for bipartisan solutions, or at least listens to opposing viewpoints and incorporates some acceptable positions from the minority.

And we must remember, if individual rights are good for people on one side of an issue, they are good for people on the other side. If they are good for some citizens, they are good for all. And if they are good in some workplaces, they are good in all.

Where do you see hypocrisy in government and the workplace?

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When a Major Project Is Over, How Do You Decide What Comes Next?


2A83XPT89B.jpgI have just finished a major project and I’m at loose ends. I’ve been at this point many times in my career. When I worked for a corporation, there was usually another project waiting to take the place of the one just finished. In fact, I generally had many projects overlapping, though sometimes one took precedence. But now that I work for myself, when one big project ends, I need to motivate myself to move on to the next.

For the last couple of months, I have been bringing a huge writing project to closure. It is about to be published (not under the Sara Rickover name, so I can’t tell you what it is). I have spent countless hours on the minutiae, and I am just now able to raise my head and look around me. What work do I take on next? I ask myself.

In the corporate world, when I had a moment to think about what came next, I would assess what in my job was boring me (that I wanted to do less of), and I’d think about what interested me and how I might expand my expertise (that I wanted to do more of). That’s how I moved from defending employment cases into drafting employee benefit plan documents—it felt like it was time for me to broaden the service I could provide to my Human Resource clients, and employee benefits was a way to do it.

At other points in my career, my boss asked me to move into new areas, and I had little choice. That’s how I got into handling property tax assessment disputes for one division and specialized contract work for another division. Not glamorous stuff, but these matters did teach me more about business, and I’ve used both skills in non-profit work I’ve done in recent years.

Now I am faced with several possibilities for what comes next. The advantage is that I get to choose. So, how do I choose? Here are some of the questions I am asking myself:

  • Do I do what seems like the logical next step?
  • Do I do what will teach me the most?
  • Do I do what will make me the most money?
  • Do I do what I most want to do?

And after asking myself these questions, I asked: How can I make one project address most of these needs?

I think I’ve landed on my next project. It is an outgrowth of the project I just completed, but I want to structure my approach to this issue differently. I hope with a new approach I will learn new things. It isn’t necessarily what I most want to do, but I am getting excited about it as I plan the first steps.

What do you do when you get to choose your next project?

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What To Do When You Don’t Get to Choose Your Boss


boss-454867_1920For the first twenty years or so of my career, I was fortunate to be able to pick my boss. By that I mean, I knew who I would report to when I took the job.

In my first corporate assignment, I didn’t know what I didn’t know about my supervisor. I knew who he was and what his credentials were, but frankly I was clueless as to how much a manager’s personality impacts the workplace environment. I worked for this man for many years, and I learned his strengths and weaknesses, as well as experiencing first hand the benefits and pitfalls of his characteristics as a manager.

On my next few assignments, I knew something more about the individuals I went to work for, though I didn’t know these individuals well. Still, I chose the jobs knowing who I would report to. I went into the jobs knowing something about them, and had colleagues who had worked for them longer to whom I could talk. And I had enough experience to know myself and how I liked to work, as well as how to be flexible and adapt to new managerial expectations.

Then, in the last few years of my corporate career, I twice had managers foisted on me. My former managers left their roles (and one left the company), and new people were assigned to the positions that I reported to. I had no control over my reporting relationships. It was a disconcerting experience to be in my forties and suddenly have to change how I related to my boss with very little warning.

Even though it was difficult, I was fortunate to know who these people were, and I had worked with them before in previous assignments. Reporting to these individuals was far different than working as peers with them, but I knew the importance of building a relationship with one’s manager and in addressing their priorities. Many people do not have the benefit of knowing the boss that is foisted on them.

So here are my tips for how to deal with a boss you didn’t choose:

1. Analyze the situation

The first thing to do is to understand the organizational issues that led to you having a new manager. Did your old boss retire after a laudable career or was he or she fired? These circumstances will lead to different dynamics as your new manager comes into the workplace.

Even if you don’t know the particulars, you probably have some idea as to what the expectations for change are in your department. Spend some time thinking about the situation you find yourself in.

2. Gather information

As you analyze the situation, gather additional information where you can. Maybe you know your new boss, as I did mine. But if not, you should see what you can find out about his or her work styles, what the higher executives’ expectations are for change in your department, and anything else that can help you fit into the organization as it is evolving.

Do a little research on what executives in your field (or managers generally) should do in their first 90 days in a new role. That will help you assess what your new boss is probably thinking about and where he or she might focus attention first. If you can address your boss’s priorities, or even help determine those priorities, you will be in a better position to be successful.

3. Determine your loyalties

You may have loved working for your old manager. You may have strong friendships with co-workers that might now be upset if the department reorganizes. You might be close to retirement yourself and just want to lay low. Whatever your situation, decide in your own mind where your loyalties lie.

I’m not suggesting that you turn into a back-stabber, but you should give some thought to who else might get caught up in the changes and how they will react. Think about whom you want to help and about where you would ideally end up in relation to others in the organization.

And I suggest that, if your old boss was fired and the new manager is expected to make significant changes, taking the attitude that “that’s how things have always been” is not going to get you very far.

Simply because he or she is your supervisor, the new person to whom you report is deserving of respect and loyalty. Others also deserve your respect and loyalty, and that is why I recommend you consider how all the new relationships you will have after the change will impact your role.

4. Decide what you bring to the table

It’s a cliché, but you want to be part of the solution, not part of the problem. You want your new manager to see you as a resource. So think about what you can do to help your new boss.

Do you have specialized skills or experience that the boss does not have—how can you diplomatically make your abilities known and available to your manager? Do you have relationships with others or insights into the industry that could benefit the new boss? Again, where can you help fill gaps?

5. Provide assistance to your new manager

After you’ve analyzed the situation, gleaned what you can about your new supervisor, thought about the loyalties and responsibilities you will have in the future, and assessed where you fit in, then make a sincere offer to assist your boss where you can. If you’ve done this analysis, you’ll have some specific suggestions of how your skills and background can help your new manager where he or she is most likely to need help.

You will have positioned yourself to address his or her needs and priorities, and you will be appreciated for it. Yes, it’s office politics, but it’s also common sense to try to make yourself useful in a new environment.

What additional tips do you have for dealing with a boss you didn’t choose?

 

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Performance Reviews—Make Them More Flexible to Make Them More Meaningful


Business Handshake2016 is half over. I’ve asked before in the middle of the year, are you halfway toward meeting your performance objectives?

That question is still a good one to ask yourself as a form of self-assessment. But it might need tweaking. From a management perspective, the question is probably less relevant than it has been traditionally. There is a trend away from annual performance reviews and annual objectives toward a more flexible system. I think this is a good trend.

Businesses from General Electric to IBM to Goldman Sachs are moving to more project-oriented, shorter term performance objectives. And if GE is changing, you know something is afoot—Jack Welch instituted the epitome of the “rank and yank” performance management system.

The best performance management systems focus on (1) on aligning employee performance with organizational goals and (2) communications between managers and employees. The “annual” nature of performance management worked better in a steady-state business environment than in today’s faster paced, ever-changing situations

I have long been an advocate of managers’ giving performance feedback more frequently than once a year (see here, here, and here). And if managers don’t conduct regular formal or informal performance reviews, employees should ask for more coaching and feedback.

But it’s all to the better if corporate systems promote this regular dialogue about performance.

The new IBM system, called Checkpoint, envisions shorter-term goals and quarterly progress reports. It judges employees on five criteria—business results, impact on client success, innovation, personal responsibility to others, and skills. So there are five scores, rather than a single performance rating.

GE is also moving toward a more flexible system with more frequent feedback.

And Goldman Sachs is dropping its numerical ratings in favor of “qualitative” feedback that is “real-time” during the year, rather than using annual reviews, though it is using verbal ratings of “outstanding,” “good,” and “needs improvement.”

All these systemic changes feel like they are moving employers in the right direction on performance management. But, as with most management tools, it isn’t the tool or the system that is important, but the communication between managers and employees.

As one writer recently pointed out,

“The more seriously an organization takes its performance review process, the less human a workplace it is!”

The focus should be on the human element, not on administering a system.

What is your company doing to keep its performance management system relevant to today’s workforce?

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Favorite Firing: Terminated for Lying About Leave


police-officer-clipart-black-and-white-nTXoX7MTBYears ago, I used to discuss employment cases I worked on with my kids at the dinner table. I didn’t use names, but I did describe the circumstances. “Don’t ever lie to your employer. You can get fired for lying,” I told them.

A recent court case from Ohio proves I’m still right. In Mattessich v. Weatherfield Township (Ohio Ct. App. Feb. 8, 2016), a police officer who had taken leave for depression was later terminated for lying about his medical leave. This is yet another “favorite firing” case involving law enforcement personnel.

The Facts: After Richard Mattessich, a police officer with the Weathersfield Township Police Department in Ohio, applied for a promotion to sergeant, he alleged that another applicant had been late to work. A video proved that Officer Mattessich’s allegations were false. The Chief of Police considered terminating Officer Mattessich at that time, but gave him a second chance. The Chief did require Officer Mattessich to undergo a psychiatric evaluation. A health care provider concluded that Mattessich needed sick leave, and he was off work for nine months.

Officer Mattessich passed a fitness-for-duty exam and returned to work. Nevertheless, others on the police force thought he lacked confidence and even seemed “dazed” and “out of it.” Officer Mattessich said he was fine and denied having any mental health counseling while on leave.

A few weeks later, his superiors learned that Officer Mattessich had in fact been treated for depression with counseling and medication. He admitted he had lied earlier about not receiving any treatment. Shortly thereafter, his employment was terminated for lying. The Chief of Police indicated that he could not trust a dishonest employee, because honesty and integrity were essential parts of the job for police officers.

Mattessich filed a disability discrimination lawsuit alleging that he had been discharged because of his mental health condition. The trial court granted summary judgment to the employer and dismissed the case, ruling that dishonesty—not disability—was the motivation behind the termination.

On February 8, 2016, the Ohio Court of Appeals upheld the termination. Although Mattessich’s “depression” was mentioned during the termination discussions, it was only mentioned because it was related to the plaintiff’s deception. There was no evidence that his mental health status was the cause of his terminaiton. Just because the employer knew about some mental health condition did not mean that any subsequent adverse decision was the result of discrimination.

The Court of Appeals found that the police department had provided a legitimate, nondiscriminatory reason for Officer Mattessich’s termination. It therefore became the plaintiff’s responsibility to prove that the reason was pretextual. The Court stated:

To establish pretext for a claim under the Civil Rights Act, “a plaintiff must demonstrate that the proffered reason (1) has no basis in fact, (2) did not actually motivate the employer’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”

Officer Mattessich failed to provide evidence to support pretext under any of these three categories.

One of the three judges on the Court of Appeals did dissent. She argued that the employer regarded Officer Mattessich as disabled and that there were questions of fact about the officer’s dishonesty that should have survived summary judgment.

The Moral: What I told my children is still good practice at work—do not lie to your employer.

This case involved law enforcement, where honesty is critical for the success of the police department’s work with the public and in courts. But honesty is critical in every employment relationship. Every employee owes his or her employer a duty of loyalty, which encompasses veracity. Every employer should have a policy prohibiting employees from lying to their supervisors.

And every employer should investigate allegations that an employee has lied—not only when the lies involve things as critical to the employment relationship as fitness for duty and leaves of absence.

Of course, communicating employment policies and consistency in applying those policies are critical. In this case, the Court of Appeals found that the Weathersfield Township Police Department had disciplined other officers caught committing acts of deception. So consistent application of the policy was important.

As noted above, there was a dissent in this case. These situations can go either way for the employer. The more the employer can distance the termination from the finding that the employee is disabled, and the more similar situations involving employees not in the same protected class as the discharged employee, the better the case is likely to go for the employer.

Involving Human Resources professionals and employment attorneys in these situations prior to discharging the employee is always a best practice.

But in this case, the biggest issue is that it took five years to get an appellate ruling that the employee could legitimately be discharged for dishonesty.

When have you had to deal with dishonesty in the workplace?

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