Likewise, it's interesting that many of us who have addressed this query have assumed that "legal action" was on the target. The student's question, as I read it, doesn't make that clear. In fact, it seems to suggest anything but. The message says, "The situation is touchy and we were just wondering if this falls under harassment laws and what the best way to go about addressing the issue is. His options would be to talk to the HR manager or the owner of the company." Note the specific statement of options makes no mention of legal action. Sounds to me more like the question of someone who wants to go into a conversation understanding all the issues at play than someone who is contemplating any formal legal action. Wouldn't we counsel someone--even if legal action wouldn't be "worth it" and, thus, would never be pursued ultimately--to be aware of what his or her formal legal options are? That sort of knowledge is important in any kind of "negotiation," even when that negotiation is an informal conversation with an HR professional (who would no doubt be sensitive to potential legal liability) or a manager. Though I probably wouldn't give this advice based on the information presented, there are certainly situations in which it might be strategically advantageous for an employee to go into such a conversation communicating the following sentiment: "Although I have no interest in pursuing any legal remedy at this point, what occurred was at least arguably unlawful and could subject this organization to liability risks. So, not only do I never want to be subjected to that behavior again based on its social inappropriateness, I want to be sure that the company, which I value, isn't threatened with that sort of liability should someone less loyal and level-headed than I be subjected to it."
Again, on the facts presented here, there doesn't seem to me to be much of a basis for the "was at least arguably unlawful" part of that statement. So, I wouldn't think that approach would have much purchase. But, it's at least in the realm of possibility that it was the sort of thing this student was contemplating short of running to the courthouse. (Or at least we ought to encourage our students to think that broadly about their options.)
All that being said, I agree with Robert's more general point, and I think that employment law doctrine ought to do a better job of taking it into account.
Jamie Darin Prenkert
Weimer Faculty Fellow
Associate Professor of Business Law
Department of Business Law & Ethics
Kelley School of Business, Indiana University
1309 East Tenth Street, Room 233
Bloomington, IN 47405
812/856-5069
812/856-4695 (fax)
[log in to unmask]
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Kurt Schulzke
Sent: Wednesday, October 31, 2012 1:21 PM
To: [log in to unmask]
Subject: Re: Workplace harassment?
It is also interesting to note the assumptions made -- about state of mind, motive, and such -- by those who have addressed the issue here. Robert rightly labels his speculation. Much may have been left out of the original fact scenario that would be uncovered through more detailed review by an expert.
On its face, this scenario looks like a one-off instance of boorish behavior. Maybe it is. If so, then I would agree with list members who have suggested that the student just write this one off as a minor wrong never intended to be righted by legal process. But if there is more to this story (and if the relationship with the employer is already bad), she stands to lose nothing by contacting an experienced plantiff-side employment law expert to explore options.
Kurt S. Schulzke, JD, CPA, CFE
Associate Professor of Accounting & Business Law Director - Law, Ethics & Regulation Corporate Governance Center Kennesaw State University
+ 1770-423-6379 (O)
+ 1404-861-5729 (C)
http://coles.kennesaw.edu/centers/corporate-governance/
My research: http://ssrn.com/author=804023
----- Original Message -----
From: "Robert Bird" <[log in to unmask]>
To: [log in to unmask]
Sent: Wednesday, October 31, 2012 12:55:47 PM
Subject: Re: Workplace harassment?
What's most interesting, at least to me, is that the student at her husband apparently considered legal action against his employer seriously enough to consult with her professor. This is evidence of what Pauline Kim explains as a "fairness heuristic," which means that 'what I believe is wrong must be illegal'. The husband perceived his treatment is unfair, thought then it might be or likely was illegal, and considered taking such action. More broadly, I suspect that many employees believe they have more rights than they actually possess.
Again, I'm totally speculating here, but they also didn't dismiss the idea of legal action out of hand because of the loss of goodwill it would create in workplace. They seemed to under-emphasize the political and long-term consequences of threatening or filing such an action. I suspect that even the threat of formal action would label the husband a 'sue happy pariah' by managers at his workplace. At its worst, a lawsuit might follow him to subsequent employment.
At least to me, this is more interesting from a human workplace psychology perspective than it is a legal question of Title VII.
Robert
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Kunkel, Richard G.
Sent: Wednesday, October 31, 2012 12:38 PM
To: [log in to unmask]
Subject: Re: Workplace harassment?
Hi ALSBers,
Not every kind of boorish behavior in the workplace gets a legal remedy - only particular ones identified by statutes (Title VII) and common law (defamation, emotional distress).
The remedy for most boorish behavior comes from the marketplace. Good employees (even those not harassed, but who object to harassment of
colleagues) vote with their feet and leave for other jobs with reasonable bosses and co-workers. Firms develop reputations as sweatshops or unfriendly to workers, and don't get the best quality applicants. The market has ways of settling the score, eventually.
The best remedy for the employee is to find a better job in the labor market -- and upon leaving, to be sure that the HR manager and owner know the reasons for leaving, so that the boorish boss will have to take responsibility with the employer.
This option may be difficult in the current economy, so for the time being, the employee may conclude that a decent job with a jerk boss is
better than a lesser job with a good boss, or no job. Unfortunately, in
that case, neither the market or the law provides a remedy -- and sadly, this is all too often the case. Here, too, the market makes the firm answer for the boorish manager - it is unlikely that employees in such cases will strive to give their best effort, will have more absenteeism, medical issues etc. Productivity will fall. The firm with boorish managers will pay, eventually, in court, or in the market.
Rick Kunkel
-----Original Message-----
From: DANIEL HERRON <[log in to unmask]>
Reply-To: "[log in to unmask]" <[log in to unmask]>
Date: Wed, 31 Oct 2012 12:08:08 -0400
To: "[log in to unmask]" <[log in to unmask]>
Subject: Re: Workplace harassment?
>of course....it is a wonderful talking point
>
>On Oct 31, 2012, at 12:01 PM, "Kurt Schulzke"
><[log in to unmask]> wrote:
>
>> To be clear, I did not say, "Yeah, go file a lawsuit." Only this:
>>This situation may well be actionable under Title VII.
>>
>> Admittedly, Title VII would be a tough sell on the basis of a single
>>F-bomb. But further inquiry might yield additional details helpful to
>>a Title VII action or something similar. Race, national origin, or
>>age? Is this employee a whistleblower? Why did this employer blow up
>>in this situation?
>>
>> Whether a lawsuit is "worth it" is separate from actionability.
>>
>> Kurt S. Schulzke, JD, CPA, CFE
>> Associate Professor of Accounting & Business Law Director - Law,
>> Ethics & Regulation Corporate Governance Center Kennesaw State
>> University
>> + 1770-423-6379 (O)
>> + 1404-861-5729 (C)
>> http://coles.kennesaw.edu/centers/corporate-governance/
>> My research: http://ssrn.com/author=804023
>>
>>
>>
>>
>> ----- Original Message -----
>> From: "Lee Reed" <[log in to unmask]>
>> To: [log in to unmask]
>> Sent: Wednesday, October 31, 2012 11:30:51 AM
>> Subject: Re: Workplace harassment?
>>
>> How can these facts fit under Title Vll? Where is "race, sex, color,
>>religion, or national origin"? Maybe if the manager doesn't cuss at
>>female employees, but otherwise Title Vll doesn't apply to the husband.
>>How about intentional infliction of mental distress, but only then,of
>>course, if the facts shock the court as being way out of the ordinary
>>and the husband can come up with a heart attack or other significant
>>physical manifestations of the "ordeal."
>>
>>
>> On Wed, Oct 31, 2012 at 11:14 AM, Herron, Daniel J. Dr. <
>>[log in to unmask] > wrote:
>>
>>
>> But.....given the fact pattern, is it worth it?
>>
>> Dan
>>
>> On Oct 31, 2012, at 11:09 AM, "Kurt Schulzke" <
>>[log in to unmask] > wrote:
>>
>>> In my view (not legal advice), the conduct described could well be
>>>actionable as harassment under Title VII. See
>>>http://www.eeoc.gov/laws/practices/harassment.cfm .
>>>
>>> Kurt S. Schulzke, JD, CPA, CFE
>>> Associate Professor of Accounting & Business Law Director - Law,
>>> Ethics & Regulation Corporate Governance Center Kennesaw State
>>> University
>>> + 1770-423-6379 (O)
>>> + 1404-861-5729 (C)
>>> http://coles.kennesaw.edu/centers/corporate-governance/
>>> My research: http://ssrn.com/author=804023
>>>
>>>
>>>
>>>
>>> ----- Original Message -----
>>> From: "Daniel Warner" < [log in to unmask] >
>>> To: [log in to unmask]
>>> Sent: Wednesday, October 31, 2012 10:39:48 AM
>>> Subject: Workplace harassment?
>>>
>>>
>>>
>>>
>>> Hi Colleagues,
>>>
>>>
>>>
>>> I received the note below from a student. This situation doesn¹t
>>>seem to be sexual harassment; it seems more that the boss here
>>>behaved like an obnoxious knucklehead. But boss being offensively
>>>impolite, even using the F word, doesn¹t seem to me to be harassment.
>>>The bit about the HR person being close friends with the boss is a
>>>nice touch, but certainly typical in a small business.
>>>
>>>
>>>
>>> I don¹t give any legal advice to students, certainly, but this
>>>deserves the courtesy of a reply. What recommendations would you make
>>>here?
>>>
>>>
>>>
>>> Thank you. Here¹s the note:
>>>
>>>
>>>
>>> Today, my husband had an experience where his boss yelled and cussed
>>>him out with the F word in front of four other employees, without due
>>>cause.
>>>
>>> This obviously upset him, but he simply turned around and continued
>>>his work. He felt unsafe and, even though his boss apologized about
>>>15 minutes later, he still feels anxiety about going back to work
>>>tomorrow. It's a small business and the HR
>>>
>>> manager happens to be very close friends with his boss. The
>>>situation is touchy and we were just wondering if this falls under
>>>harassment laws and what the best way to go about addressing the
>>>issue is. His options would be to talk to the HR
>>>
>>> manager or the owner of the company. Do you have any suggestions or
>>>advice?
>>>
>>>
>>>
>>> Thanks again,
>>>
>>>
>>>
>>> Dan
>>>
>>>
>>>
>>>
>>>
>>> Daniel M. Warner
>>>
>>> Professor, Department of Accounting
>>>
>>> (Business Legal Studies)
>>>
>>> MS 9071
>>>
>>> Western Washington University
>>>
>>> 516 High St.
>>>
>>> Bellingham, WA 98225
>>>
>>> (360) 650-3390
|
