Employment and Labor Insider - Legalese Is Not Spoken Here

"Ai, ai . . . ai, ai . . . have you ever danced in the tropics,

In that lazy, hazy, like

Kind of crazy, like

South American way?

"Ai, ai . . . ai, ai . . . have you ever kissed in the moonlight,

in the grand and glorious,

gay notorious*

South American way?"

*Those really are the words to the song.

Down South America Way, © Warner/Chappell Music, Inc., EMI Music Publishing.

Oh, those wild and crazy Secret Service agents. It's bad enough that they patronized ladies of the evening while they were on the presidential security detail to Colombia.

Gives a whole new meaning to the term "secret service," doesn't it?

But it's even worse that one of them allegedly promised a lovely young señorita named "Dania (last name unknown)" that he'd pay her $800 USD . . . but then, after she'd acted in reasonable reliance on his promise to her detriment, told her he was drunk when he promised her the $800 and offered her $30 instead.

The stupidity of THAT, my friends (if true), is astounding. And as we all know, the dispute about sums due and owing caused a row in the hotel lobby, which caused law enforcement authorities to be summoned, and next thing you know we have 11 Secret Service guys being placed out of service. One has already "retired," and one has been fired (and reportedly plans to sue). Another chose to resign. The other eight are still being investigated.

Employers with international operations tell me that this kind of thing is a real problem in two ways. First, we have the "Secret Service syndrome" - normally sober-minded Americans go to another country that is less . . . Puritanical* than the U.S.A. and, next thing you know, they're wearing lampshades on their heads and engaging in other shenanigans that I am too delicate to recount here and that they'd never dream of engaging in here at home.

*DISCLAIMER: Use of the adjective "Puritanical" is not intended as an endorsement of sexual harassment or other abuse, prostitution, or any other segment of the sex industry.

Second is the flip side -- I'll call it the "Dominique Strauss-Kahn syndrome." Foreign nationals from less . . . Puritanical countries come to the United States and think all the behavior that is acceptable (or at least winked at) at home is A-OK here, too -- like going to prostitutes, or kissing or pinching attractive female co-workers as a "compliment," or succumbing to the irresistable charms of the hotel maid. (Actually, Strauss-Kahn is under investigation in Europe, now, too.)

Did you know that in many countries, sexual harassment is not against the law, or is a new concept? It's a fact!

So if you have employees who do a lot of international travel as part of their jobs, or you have foreign nationals coming to work here, make sure they understand the risks of behaving badly, whether it's in the U.S. or somewhere else. Your harassment training should be tailored to your workforce, and if you're "international," you should make sure that your foreign employees understand how things work here (which they may honestly not know unless you tell them -- in my experience, folks from other countries are shocked to find out how . . . Puritanical we are here) and, for everybody, the risks of bad behavior to their families and their jobs.

I'd sure hate to be one of those 11 Secret Service agents having to come home and face the Missus. Not to mention the President of the United States. Ugh.

Photos and art from Wikimedia Commons (public domain).

Ah, February! The month of love! Of course, if you're a lawyer, you see the worst of humanity and never get to hear about true, faithful, honorable, self-sacrificial love -- sexual harassment is as close to "love" as we ever get. (See, you thought lawyers were just jerks - now you feel sorry for us!)

So, in honor of St. Valentine's Day, this is the best I can do. Here are three recent sexual harassment cases, each with a moral for employers. That's three cases, and three morals.

Hey! Did you know that 3 x 3 = 9? And three 9s = 9-9-9? I miss Herman Cain!

Here comes Doctor Love! In the first case, the plaintiff, a nurse, had an affair with a married doctor. She admitted that, while the affair was going on, she told everyone in the world about it, and she and the doctor had some "encounters" in the workplace. He promised that he was going to leave his wife, but finally admitted that he'd been lying about that, so the plaintiff told him to hit the road. (Or, did she?)

The plaintiff now told everyone in the world that the relationship  was over, but her beloved doctor, holding fast to the hope that he could continue to have his cake and eat it, too, kept sending her romantic text messages and trying to touch her. As the court tactfully put it, "As a result, she sometimes avoided him at the office." (Emphasis added.) She apparently had an opportunity to transfer to another department away from him but turned it down.

Finally, the plaintiff sent a letter to her employer saying she wanted to continue working with "Doctor Love" but only in a professional way. She said that she wanted to be treated "as any other employee . . . no better and no worse."

The employer brought in an attorney to investigate her allegations of "sexual harassment," and then offered her two choices: quit, or be fired for disruptive behavior and having sex on the employer's premises.

The nurse chose to be fired (the doctor was fired, too), and she brought a number of claims against the employer, including sexual harassment, sex discrimination, and retaliation. The court granted summary judgment to the employer, saying that the doctor's post-breakup text messages were not objectively harassing even though they might have been annoying and "distressing." (The decision quotes the messages, and they really do seem fairly tame in the context of a breakup.) There was no retaliation, the court said, because a "plan" to get rid of her was not an adverse employment action. She lost on her other claims because she didn't even address them in her response.

MORAL: I actually have two morals from this case: a moral for women, and a moral for men. (Roles may be changed as appropriate.)

Ladies, if you get mixed up with a married man who lies to you about getting a divorce, call him a cad and dump him, but don't accuse him of sexual harassment if he didn't sexually harass you. And by no means sue your employer, an innocent bystander, for the consequences of your folly. If you don't care about doing the right thing, care about the fact that you will lose your case because all of your co-workers, who know you were having a consensual affair, will testify against you. Better to shake the dust from your feet and move on. Remember how happy Kirstie Alley was after she forgot about that rotten George Segal and married John Travolta? Do that.

Gentlemen, I've said this before and won't ever stop: 99.9 percent* of sexual harassment lawsuits result from a failed extramarital affair. Like our "Doctor Love," by having an affair at work you may make yourself vulnerable to a lawsuit, lose your job, and have to drop out of the presidential race (or at least have a severe gender gap in support for your candidacy). You will also have some explaining to do at home. Always remember that "a relationship is like a porcelain nail. If it breaks, you can put it back together again but it will never be the same unless you make a commitment and don't sleep with nurses!"

*Completely made-up statistic, but true nonetheless.

Lewdity and crudity, but no dudity. In our second case, the plaintiff, a female, had been friends with a co-worker, also female, who was sometimes an "acting" supervisor. At some point the friendship ended. The acting supervisor (we'll call her "Doris") was undisputedly lewd and crude (since this is a family blog, I won't give the gory details here, but you can read the decision if you must). The plaintiff was not squeaky clean either, and had talked about her sex life to Doris, and had been reprimanded for sending an inappropriate cartoon email, but this all occurred while the two women were still friends. After numerous complaints by the plaintiff and others, the employer suspended Doris for "mooning," and when she returned to work, the plaintiff didn't have to work with her any more.

Problem solved, huh? No! The plaintiff sued the employer anyway, for sexual harassment under federal and Kentucky state law. The employer moved for summary judgment, but the court is allowing the case to go to trial. Although the plaintiff's conduct hadn't been exemplary, it was far less severe than Doris's conduct. And, even though Doris was a sleaze with men, too, the evidence indicated that she was much, much worse with women. There was even an issue of fact regarding whether Doris was a "supervisor." And, because of the numerous complaints by the plaintiff and others about Doris's behavior, most of which were pooh-poohed by the employer, the court found that the issue of the employer's response should go to a jury.

MORAL: Same-sex harassment can be just as severe as opposite-sex harassment, and sometimes worse. Employers, minimize or ignore complaints about this type of behavior at your peril. Also, don't be afraid that you'll be guilty of "discrimination" if you take appropriate action against an alleged harasser who is gay. The laws against sexual harassment apply to everyone.

Even an exotic dancer has the right to say no. In our third case, the plaintiff worked at a convenience store and was aggressively pursued by her store manager. When she declined his advances, he cut back on her work hours, allegedly "forcing" her to get a second job as a part-time exotic dancer. His advances and retaliatory behavior escalated, her complaints to higher management were ignored, and she was finally fired for taking money out of the cash register (she said she was only making change) and closing the store for 10-15 minutes (she said it was necessary for safety reasons).

After she sued the employer for sexual harassment, the employer tried to argue that her boss's bad behavior was based on her "exotic dancer" job, not sexual harassment. Nice try, said the court. First, there was evidence that the behavior began before she got the job as an exotic dancer. (Remember she said she took the dancing job because he cut back her work hours at the store after she rejected his advances.) Second, his behavior was clearly based on her sex, whether it started after or before she she became a dancer.

However, the defendant did get summary judgment on her state-law tort claims because, under Maryland law, sexual harassment is not in the course and scope of employment. (In many states, these claims would also have been allowed to go to trial.)

MORAL: I have two morals from this case, too.

To all sleazebags, nobody -- but nobody -- is "fair game." Don't think that somebody's part-time or past employment, style of dress, choice of significant others, or sexual past means they're "available." Even if she's slept with everyone at your office and you can definitively prove it (doubtful, but just for the sake of argument), she still has the right to say no to you. If she says no, let it go, and treat her the same way you would treat any employee that you aren't trying to hit on.

To employers, even employees with a "history" can have valid complaints of sexual harassment. Don't ignore or minimize harassment complaints for any reason, including but not limited to any of the reasons listed in the preceding paragraph. Take all allegations of harassment seriously, respond to them promptly, investigate them thoroughly, and take the action that is appropriate under the circumstances.

Now go out and buy your true love some flowers (from a florist, not the supermarket), and have a happy Valentine's Day!

After a great holiday feast, isn't it fun just to eat the leftovers? Like a nice, cold roast beast sandwich with a wedge of leftover pie? Yum!

Here are some great labor and employment blog "leftovers" from the holidays that I hope you will enjoy as much as I did, followed by a few new year's resolutions for employers and employees. Please add to my list!

In case you were chillaxin' last week and missed it, here is a link to my 2011 labor and employment year in review. With President Obama's recess appointments (thanks to Eric B. Meyer of The Employer Handbook), it's already getting stale, so hurry up and eat!

More tasty cold stuff from around the internet:

The Evil HR Lady tells you how to know if you are the "Kim Jong Il" of your company. Funny, and good advice, too.

Daniel Schwartz of the outstanding Connecticut Employment Law Blog uses his Magic 8 Ball to let us know what to expect in the world of employment law in 2012.

And Donna Ballman of Screw You Guys, I'm Going Home uses the magic 8-ball app on her iPad to make her 2012 predictions from a plaintiff's perspective. Donna, you are so high-tech!

Philip Miles of Lawffice Space shares with us his Top 5 Employment Law Cases of the Week for 2011. If you ever wanted to know about "Crazy Bi**h Bingo" (and who doesn't?), be sure to check Philip out!

Here's a favorite from Jon Hyman of Ohio Employer's Law Blog: Resolve this year to properly handle no-fault attendance policies. Since the $20 million EEOC/Verizon settlement, this is more important than ever.

OK, is that tryptophan kicking in yet? But, wait! Don't get too comfy, because now it's time for some employment New Year's resolutions:

1. If I am an employer, I will make sure all of my supervisors and managers have harassment training this year. At a minimum, the training will cover harassment based on race, national origin, religion, disability, and age, as well as sex. If my state or company policy prohibits other types of harassment, I will be sure that those types are covered as well.

2. If I am an employee, I will refrain from using social media to bad-mouth my boss, my company, my co-workers, or my customers . . . even if the National Labor Relations Board says it's legal for me to do so.

3. If I am an employer, I will review my attendance, medical leave, and reasonable accommodation procedures to make sure that they comply with the Americans with Disabilities Act. If they don't, I will make the appropriate changes right away. No procrastination!

4. If I am an employee, I will show up for work on time every day unless I have a very good reason not to, and I will give my employer a fair day's work for a fair day's pay, with no "drama."

5. If I am an employer, and if I haven't done it recently, I will have a wage-hour audit in 2012 to ensure that my employees are properly classified as exempt/non-exempt, that the non-exempt employees aren't working off the clock, that I'm not violating child labor laws (especially if I'm in the food or hospitality industry), and that I don't have any employees whom I am improperly treating as "independent contractors." If it turns out that I'm doing anything wrong, I will promptly fix it. No dawdling!

6. If I am an employee, I will comply with my employer's rules about appropriate behavior at work, including but not limited to rules pertaining to honesty, harassment and bullying, and safety.

7. If I am an employer, I will make sure that I am in compliance with the Genetic Information Non-Discrimination Act, and in particular that I am providing the "safe harbor" language whenever I sent one of my employees to the doctor.

8. If I am an employer, I will re-familiarize myself with the concept of "retaliation" and consult with an attorney whenever an employment decision looks like it may be close to the line. I will not wait until after the damage has been done.

Ugh. And this post started out so nice. Please add any resolutions you think employers or employees should make this year. And a safe and prosperous 2012 to you all!

UPDATE: Daniel Schwartz of Connecticut Employer Law Blog has made some excellent additions to the list below. We could go on like this all day! Check it out.

My friend and employee/plaintiff's lawyer, Lee Smith of Atlanta (who does not have a web page, and who neither blogs nor tweets!), has been corresponding with me about the words that no employee's lawyer ever wants to hear from a client. I thought it would make a great blog post, and I'll follow with five from the employer's side.

Here are Lee's top (or should I say, "bottom"?) five from the plaintiff's perspective, with his commentary:

5. (A call from out of town) "I'm calling you because all the lawyers here are in my employer's pocket."  I usually translate this as, "I have shopped this case all over, and nobody thinks I can win."
 
4. "My supervisor hates me and is nasty to me.  I am miserable at work."  I can sympathize with those afflicted with abusive bosses, but personal animus is not actionable under the law, although I once had a case where the supervisor, motivated by dislike for the employee, harassed her into multiple epileptic seizures, and we did get paid on that.
 
3. "I have this letter from the EEOC from a couple of months ago, and it says I have ninety days to file a suit."  Again, that might be a case of shopping around and not finding a lawyer, or it might be a lack of attention.  Either way, it's bad news getting caught two weeks away from the time bar.
 
2. "My employer will never let this go to court."  Oh, yes, he will.  In a cocaine heartbeat.  No employer will permit itself to be blackmailed (unless the employer is Herman Cain).  Employers know that if they give in to one, there will be a line from now to Saint Swithin's Day of unhappy employees with hands like first basemen's mitts that are out.
 
1. "I don't care about the money, I just don't want this to happen to anyone else."  Translated: "I know I have a bad case, but I just want to cause the employer some grief."  Being plaintiff in a lawsuit is hard work, and these people will bail on their lawyer.  Try getting them to work with you on interrogatory responses or preparing them for a deposition.

Thanks, Lee! In an effort to be "fair and balanced," here are the top five things an employer's lawyer hates to hear (list and comments that follow are mine):

5. (In a harassment case) "Err . . . when did we last have harassment training? We haven't been quite as good about that as we should have." Employers, please don't let your harassment training slip through the cracks. We know the economy is bad and many of you are fighting to survive. Even so, harassment training is a good investment -- not only will it flush out and allow you to informally resolve issues, but it will also earn you points with the EEOC or in court just for having done the training. Of course, it's also required by law in some states.

4. "We have an internal grievance procedure, and our decisions have been upheld every time." Sounds great, huh? Well, no. Not every employment decision is fair, even when the employer tries to do the right thing. Nobody's perfect. Therefore, some overturned employment decisions is actually the sign of an effective internal grievance procedure. Otherwise, it just looks like a rubber stamp for management.

3. "How does the employee know the rule? Trust me. He knows." I love this one. In defense of the employer, it's probably true more often than not. However, you will never be able to get the employee to admit that he knew it if the rule isn't in writing. And if you don't have it in writing, you won't be able to defend yourself if the employee "forgets" what he "knew."

PS-If your workforce speaks a language other than English, be sure your rules are communicated in the employees' language. A rule published only in English where your workforce is non-English-speaking immigrants (legal, of course!) from Ubeki-beki-beki-beki-stan-stan is not going to help you much.

2. "Well, no, nothing is documented, but she knows. If I've told her once, I've told her a million times." This is related to No. 3, but No. 3 relates to communicating employer expectations, and No. 2 relates to communicating that the employee has committed a specific violation of a standard. Informal counseling is swell. But after the 299th informal counseling, please do yourself a favor and start some documented progressive discipline. You know you will (rightfully) become fed up by occurrence no. 301 or so, and if you haven't documented, you will have no evidence that you ever addressed the issue with the employee before you fired her.

1. "No, we didn't think about how we treated 'similarly situated' employees. Each employee stands on his own." This is my worst nightmare, and unfortunately, it is a nightmare that occasionally comes true. Any time an employee is disciplined (or "coached") about poor performance or disciplined for a rule violation or bad behavior, HR 101 teaches that the decisionmaker should make sure that the employee is being treated essentially* the same as other employees who committed similar violations. (In the labor world, this is known as "following past practice.") "That which we call a rose/By any other name would smell as sweet" -- whatever you call it, it ensures that you are being consistent, which will help you defeat a claim of discriminatory or retaliatory treatment. The same principle should apply to compensation decisions, by the way.

*Sometimes an exception to the rule is justified, but the best way to make an exception is (1) to know beforehand that you're making one, and (2) to document why you made it.

BONUS -- EMPLOYER DISHONORABLE MENTION: "Don't we have employment at will in this state? Doesn't that mean we can fire an employee for any reason?" No, it doesn't. I've harped on this enough in the past, so I'll let this one go.

DISCLAIMER: Today's post has absolutely nothing to do with Veterans Day. But thank you, veterans!

Last week, I was pretty hard on Herman Cain and his response to allegations of sexual harassment. Since then, two women have come forward publicly, and all I can do is quote from my partner John Doyle:

*shrugs shoulders and sighs* "Well, you don't get your witnesses from Central Casting."

Both women appear to be, how you say, somewhat flawed. Which isn't to say they're lying or that Cain doesn't have some inordinate appetites. But all of this got me thinking that it was probably time to post another one of those, "Signs That You'll Lose Your XXX Case." Here are five signs that you, the employee, might lose your sexual harassment case:

1. You didn't report it to the appropriate people in management. With certain limited exceptions, your company will not be liable to you for harassment that it didn't know about, or couldn't have known about. If you grin and bear it as long as you can, and then quit before telling Human Resources or someone in the right position, you are probably going to lose your case.

I always tell employers to review the company harassment policy every time they receive a complaint of harassment. This is so they can be sure they are doing everything that the policy says the company will do. As an employee who is a victim of sexual or any other discriminatory harassment, you should review it, too, to make sure that you are reporting it through the right channels. If you don't, the company may have a legal defense to your claims, which goes like this -- "We had appropriate measures in place to prevent and address harassment in the workplace, and our employee failed to use them." 

2. You "asked for it." I know I'm not supposed to say things like that, and I don't mean it the way you think. I don't mean that you were "asking" to be sexually assaulted the day you wore tight pants to work. I mean that you told dirty jokes and sent dirty emails every day, and then got a dirty joke/email back and immediately suffered "severe emotional distress." If you behave a certain way at work and receive "in kind" behavior from your co-workers, or even your bosses, a court is not likely to be sympathetic with your claim of harassment.

3. You gave mixed signals out of a desire to be polite. Here's the scenario: Co-worker (or even a supervisor) thinks you are attractive and asks you out. You are not attracted to your co-worker/supervisor. But you don't want to hurt his* feelings, so you don't say, "I don't want to go out with you. Please don't ask me again." Instead, you say, "Oh, I would LOVE to go out with you, but I have plans this weekend. I'm so sorry."

*The masculine shall be deemed to include the feminine, and vice versa.

What's wrong with that?

Obviously, if you make excuses, your co-worker/supervisor is not going to take that as a rejection -- at least, not until he's asked you about 100 more times and you've given him the same excuse every time. (Even then, never underestimate the optimism of some guys.)

If you're married or have a significant other, you can always use your partner as your excuse to say no. Otherwise, just use the old reliable, "Thank you, but I don't date people I work with." It gets the point across without being a "personal" rejection. (Needless to say, if you use this as your excuse, don't run out and start dating that other co-worker who you think is, like, totally awesome.)

4. You didn't cooperate in the investigation. Courts don't like it if you try to get cute in the company investigation. Occasionally, employees will complain about harassment but will refuse to identify the alleged harasser. Sometimes after being cautioned to keep the investigation confidential they'll promptly go back into the workplace and tell all their co-workers how they really "got" that SOB who allegedly harassed them. This kind of game-playing will be used by the company to show that you had an "agenda" and either weren't really harassed at all, or at least weren't genuinely upset by the behavior. Give the company enough information so that they can try to investigate and address your complaints, and do what they tell you (as long as it's legal and reasonable, of course).

5. You made it up. Well, duh. This happens more often than you'd think. The typical scenario is a (usually male) supervisor and a (usually female) subordinate who were having an extramarital affair. Woman's husband finds out about it and goes loco, threatening to sue her for alimony and take the kids away from her. Her only way out of it is to lie to husband and say she was being forced into it. Then husband indignantly responds, "WELL, THEN WE NEED TO BRING CHARGES AGAINST HIM FOR SEXUAL HARASSMENT, AND IF YOU DON'T GO ALONG WITH IT, THEN I'LL KNOW YOU'VE REALLY BEEN CHEATING ON ME!!!!" What can she do? She's trapped.

Next thing you know, the boss's little "indiscretion" has turned into a termination offense and has gotten him named as a co-defendant in a sexual harassment suit. Not to mention that he'll have some explaining to do to his wife, which surely will not be pleasant.

Well, the sleaze deserved it, didn't he?

Maybe. But it's not going to help you, as the "victim," to do this. If this is what's been going on, your co-workers will all know about it, and there will be phone conversations that your husband taped (possibly even video of you and the boss taken by your husband's private detective), and there will be emails, Facebook postings, tweets, and text messages, and you can guarantee that the company's lawyer will get it all and will use it against you in a court of law. You don't want to go there.

Some constructive guidance

OK, so, what should you do if you feel that you are being harassed at work? Review your company's policy, and follow the reporting procedure in the policy. Even if some time has elapsed (because you just now read this awesome blog post), or even if the alleged harasser is no longer with the company, you should still report it and explain the reason for the delay to the best of your ability. Cooperate with the company's requests for information and names of potential witnesses, and always comply with the directive to keep the investigation confidential. If you behaved in a way that might have given others the wrong impression, go ahead and admit that. If more inappropriate behavior occurs after your meeting with management, let them know about the new behavior. And, most importantly, don't think you have won the lottery just because a co-worker has behaved inappropriately at work. It may very well be that all you will get is an end to the bad behavior. But that's what you really wanted, right?

Right?

(By the way, nobody's perfect. I've previously discussed top employer mistakes in sexual harassment cases.)

UPDATED 9/13/11 (see below):

And, more importantly, what is it with The Price Is Right? It's a regular Peyton Place, for cryin' out loud.

Everyone is probably familiar with the sexual harassment allegations from a few years ago against game-show icon and former TPIR host Bob Barker. Barker wisely admitted to a consensual affair, and the harassment case went away.

Now another ex-TPIR beauty, Lanisha Cole, is alleging that her career went sour after one of the bosses began having a relationship with another model. Ms. Cole resigned in 2009 and has now filed suit against the show's producers, two of whom are interestingly named Michael Richards and Adam Sandler but are no relation to Kramer or Billy Madison.

Barker's successor, Drew Carey, is not accused of any wrongdoing.

Among other things, Ms. Cole alleges that Happy Gilmore (actually, the "TPIR" Adam Sandler) burst into her dressing room while she was not fully clothed and began berating her in front of her fellow beauties for not having worn a microphone in a prior segment. (I know! -- I didn't think the women on the show were allowed to talk, either.)

Yes, I promise there is a point to this salacious gossip, and it ties in with FAQ No. 10: How can I guarantee that I'll get a sexual harassment suit? (But first, a word from our sponsor. Answer is below.)

Dear Readers: Today is the last day to cast your vote for the ABA Blawg 100 list. If you have not already voted for Employment & Labor Insider, we'd sure appreciate your doing so today. Thank you as always for your support!

ANSWER: Have an extramarital affair at work. Not that I am alleging that Ms. Cole had an affair with Stanley Spadowski or Bobby Boucher . . . but her lawsuit was brought on by the alleged relationship between "Stanley" and this other model.

Gentlemen, the easiest way to get yourself accused of sexual harassment is to have an extramarital affair with a female co-worker. Unlike dating relationships between two single people, extramarital affairs always end very badly for someone. If you decide to stick with your spouse and end the affair, your ex-partner is likely to panic and seek vengeance. The easiest way for the jilted woman to get vengeance is to accuse you of sexual harassment.

Please note that I am not accusing only jilted women of being vindictive -- I am not -- but jilted men who are vindictive usually "act out" in other ways. (One of these days I'll have a post on workplace violence.)

Yes, men, if you admit to the affair, you will eventually be cleared of harassment. But you will have some very unpleasant explaining to do. I'm sure it was no fun for Bob Barker to have to face the Truth or Consequences. (See 9/13/11 update below.)

And, as Ms. Cole's lawsuit teaches us, you can be sued for sexual harassment even if the affair was with someone else.

PS - Funniest comment I've heard about this lawsuit is on the New York Daily News website, from evyeve67, and I quote: "Get a real job where ur brain is used Miss Cole. All u do is point at items." (Spelling and punctuation in original, of course.)

UPDATE (9/13/11): Time Magazine has the (rather extensive!) history of legal claims brought against TPIR over the years. According to Time, Mrs. Barker passed away in 1981, more than a decade before model Dian Parkinson sued Bob Barker for sexual harassment. (Hat tip to plaintiff's lawyer, blogger, and writer Donna Ballman.)

FAQ No. 1: What exactly is this "interactive process" that we hear so much about?

FAQ No. 2: "What does 'right to work' mean?"

FAQ No. 3: When do I have to start saving electronic evidence?

FAQ No. 4: Should I offer harassment training to rank-and-file employees? Isn't that just asking for trouble?

FAQ No. 5: Is there any difference between light duty and reasonable accommodation?

FAQ No. 6: We don't have a union. Do I still have to display that new NLRB poster?

FAQ No. 7: Should the "ugly" be protected from discrimination?

FAQ No. 8: May I send an employee to our doctor to verify the need for a reasonable accommodation?

FAQ No. 9: When must I pay a non-exempt employee for travel time?

Don't forget, if you vote for Pedro Employment & Labor Insider, all of your wildest dreams will come true.

Earlier this summer, in writing about reference information for bad employees (I call them "the Axis of Evil"), I mentioned employment investigations, noting that this was a topic for another post. Well, today is the day. Now that the Supreme Court has officially recognized "cat's paw" liability for employers whose decisions are tainted by an individual with an unlawful motive, it is more important than ever for employers to conduct workplace investigations that are above reproach.

And because it's more fun to talk about mistakes than what people do well, I'm going to focus on five workplace investigation errors that I see regularly.

Error No. 1. The man* who knew too much. This is a very common mistake when the investigator is someone from the same worksite as the individuals involved, and knows the "cast of characters." "TMI" is not a good thing. Hear me out. The problem is that someone who already knows the cast of characters can have a very difficult time keeping an open mind.

*The masculine shall be deemed to include the feminine, and vice versa.

Ideally, a workplace investigation will be done by someone from outside, who can investigate objectively. But if the investigation absolutely must be done by someone who knows everyone involved, the investigator should keep in mind the cliche, "Even a stopped clock is right twice a day." Just because the complaining employee is a known drama queen and the accused is a thrice-decorated war hero who rescues little kitties from the tops of trees and gives all of his money to the poor (or the complaining employee is a lovable Sunday school teacher who drives only 15 miles a week, and the accused is Tiger Woods) it is possible that, in this case, just this once, the roles are reversed. OK, probably not, but at least as an investigator you should keep that attitude to the best of your ability. You can turn your brain back on when it's time to assess your evidence and determine what really happened.

Error No. 2. Dangling leads. I cannot tell you how many times I've been asked to review an employer's investigation, and the notes say, "Joe didn't see Bill make a pass at Mary, but he said that we should talk to Susan, who works in the same area and might have seen something." I scour through the rest of the notes to find the interview of Susan, to no avail. The reason? Nobody followed up on Joe's suggestion that Susan be interviewed. Fortunately, we usually catch this type of thing while there's still time to go back to Susan and find out what, if anything, she knows. But companies shouldn't be having to waste precious legal fees hiring lawyers to point out such obvious omissions to them. (Save us for the hard stuff!) Investigators need to follow all leads provided by the accuser, the accused, and the witnesses. If they don't, and if the mistake isn't corrected before there is an EEOC charge or lawsuit, you can bet the government/plaintiff's lawyer will use the lack of follow-up to its/his/her advantage.

Error No. 3:  Accepting conclusions as "facts." Another mistake I see all the time. Investigator asks, "Is Tifanyea sexually harassing the men she works with?" Amber replies, "I feel that Tifanyea is very inappropriate with the guys." Or my personal favorite: "Oh, you know, Tifanyea is Tifanyea." These are not facts. These are conclusions, and they don't tell you anything. A good investigator will say, "Amber, tell me what Tifanyea does with the guys that you consider inappropriate," or  "Tell me what you mean when you say Tifanyea is Tifanyea." If the investigator doesn't do it, you can be sure that the EEOC or a plaintiff's lawyer will.

This, by contrast, is a factual statement: "Yesterday, I overheard Tifanyea telling Dave that his jeans really made his butt look cute. Dave turned bright red and walked away." Or this: "Every day, Tifanyea is talking about how 'hot' Steve is. Steve never says anything to her, but he's told me several times that he is uncomfortable and tries to avoid her."

See the difference? Now you have some information! 

Error No. 4: "You don't wanta get mixed up with a guy like me, Pee-wee. I'm a loner. A rebel." And you know those "Do not remove under penalty of law" tags they put on mattresses? Well, I cut one off! (Sorry - I got carried away.) In all cases, and especially if the investigation is conducted by the man* who knew too much (see Error No. 1), someone else ought to review the findings of the investigator to make sure that all leads have been followed (see Error No. 2) and that conclusory statements have been supported by facts (see Error No. 3), and that there is adequate factual support for the preliminary conclusion of the investigation. The reviewer should also assist in determining what really happened and what the appropriate action should be. The reviewer ideally should be an in-house attorney, a corporate-level Human Resources professional, or an outside attorney, preferably with expertise in employment law. He or she should also be someone who is not personally involved with the cast of characters, or only minimally involved. 

Error No. 5: "We will keep everything you say strictly confidential. Except, of course, when we talk about it." It is impossible to keep an investigation completely confidential. You cannot interview accused parties or witnesses without disclosing at least some of the reason for asking the questions. If you tell an employee that everything will be kept confidential, and then she finds out that you've been talking, she is rightfully going to be ticked off at you. Better to say, "We will keep everything that you say as confidential as we can, but of course we may have to talk about this with other people involved in the investigation. I can assure you that we will not discuss this with anyone who doesn't have a legitimate need to know." Employees are not stupid. They will understand and will appreciate your honesty.    

The U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) recently affirmed the dismissal of a race discrimination lawsuit against a union whose hiring hall refused to refer the plaintiff for laborer positions. Essentially, the Court said that the union was justified because the plaintiff had three no-rehire letters in his file from three separate ex-employers. His alleged "issues" included poor attendance, poor job performance, and insubordination, as well as abandoning a $40,000 Bobcat . . . while the motor was running.

Plaintiffs sure do crack me up sometimes.

I have no doubt that this guy's prospective victims employers were very grateful to the union, as well as to the three employer "guinea pigs" for providing honest information about his lousy work ethic and attitude.

But, you may be thinking, we can't provide information about an ex-employee. All we can do is provide dates of employment and positions held (aka Name, rank, and serial number)! Otherwise, we'll get sued!

Generally, I agree. Employers who provide negative reference information about former employees can be vulnerable to claims for defamation and retaliation (yes, the law says you can be liable for retaliation against a former employee as well as a current one), and under state anti-blacklisting statutes.

However, there are occasions when it is prudent to provide more than "Name, rank, and serial number" to (1) avoid incurring liability when a bad employee does something really, really bad at his next workplace, and (2) maintain good relations with your fellow employers by providing judicious warnings about the bad apples.

There are also occasions when you might want to provide positive information about an ex-employee.

Wow -- who knew reference information was so complex?

The complexity will make sense when you consider that not all involuntary terminations are equal. I think it helps to divide them into four categories:

1. Good employee, lousy luck. This group is predominantly made up of good, hardworking, rule-abiding employees who get caught up in a reduction in force. As a responsible employer, you are going to want to do everything you can to help these folks find other jobs. It would not be wrong for you to provide this category with a letter stating that they were terminated through no fault of their own, that they're eligible to come back if the situation at the company improves, and that they're very good at XYZ.

One caveat here: Sometimes employers use RIFs as an opportunity to eliminate lackluster employees with whom management "failed to deal." In other words, their managers had not addressed their problems, much less documented anything. Assuming you provide letters of reference for the good people who were let go, I'd consider providing them also for employees in this "lackluster" category, but saying only that they were let go as part of a RIF and, perhaps, adding a positive but truthful statement about them -- e.g., "Mary always came to work on time every day when she bothered to show up and was well thought of by her co-workers even though her bosses couldn't stand her."

Another caveat: I wouldn't even do that much for employees who were clearly bad. For example, your RIF criteria might have included everyone on an active written discipline. Unless they fall into my last category (see "Axis of Evil," below), this group should usually get the "Name, rank, and serial number" treatment and no letter of reference.

2. Good guy*, couldn't cut it. This category includes the employee who means well and tries hard, but who just cannot meet the employer's performance expectations and so is eventually fired, hopefully after some sort of performance improvement plan. "Name, rank, and serial number" is fine for this type of employee, but it would also not be wrong to provide a truthful and positive letter of reference -- for example, "Joe was our Chief Financial Officer from [DATE] to [DATE], and when it came to making sure we paid all our bills on time, no one was better."

*As we lawyers so pithily put it, "The masculine shall be deemed to include the feminine, and vice versa."

3. The run-of-the-mill-rotten employee. This category includes the majority of employees who are terminated for cause: lazy employees, employees with unjustified attendance problems, employees who violate work or safety rules, employees who have bad attitudes, employees who commit lower-grade dishonest offenses (for example, falsifying time sheets), employees terminated for "less-serious" harassment (for example, one too many off-color jokes), etc. Of course, you don't owe these folks any letter of reference: they should get the "Name, rank, and serial number" treatment. If you choose to add that they are "ineligible for rehire," that should be fine as long as you have progressive warnings or other appropriate documentation so that you'll be able to prove that they're not being discriminated or retaliated against.

4. "The Axis of Evil." It is hoped that you will not encounter many people in this category, but this would include employees who were terminated for extremely serious reasons: theft, embezzlement, severe harassment (including harassment based not only on sex or race, etc., but also "stalking" or threatening or bullying), violence, crime, and serious safety violations, especially if they endanger co-workers or the public.  For this category of employee, you probably have a moral if not legal obligation to provide some level of warning to would-be employers. Of course, you will have to be very careful about what you say to avoid liability for defamation. But truth is a defense to a defamation claim, so the key is to make sure that what you say is absolutely factual, and that you can prove it.

For example, let's say Mary accuses her supervisor, Joe, of serious sexual harassment -- a sexual assault. You conduct a thorough investigation (that's another blog topic for another day) and cannot determine for sure that it happened. But there is strong evidence to support Mary's allegations, and so you terminate Joe.

When Joe's prospective employer calls you for a reference, why not follow the path of least resistance and limit yourself to "Name, rank, and serial number"? Because of the gravity of the allegations. Joe might go to his next employer and rape an employee there. When it comes to light that Mary had made credible allegations of sexual assault while Joe worked for you but you didn't disclose it when asked for a reference, you could be liable to Joe's next victim and even, possibly, Joe's next employer.

So, what do you say?

NOT THIS: "Joe was terminated from Acme Company for sexually assaulting his employee in the broom closet."

Since you don't have conclusive proof that Joe did it, you won't be able to establish the "truth" defense if Joe sues you for defamation.

DO SAY THIS: "Joe was terminated from Acme Company after an investigation into allegations that he had sexually assaulted his employee."

You aren't saying anything you can't prove in a court of law, so you should be able to take advantage of the "truth" defense. And the next employer is still getting all the information it needs to be able to reject Joe for hire.

Well, you are saying, this discussion has been delightful, but it seems like an awful lot of fine-line-drawing. Does this mean we have to talk to a lawyer every time we provide an employment reference?

For categories 1-3, you should usually not need to consult with a lawyer. For the "Axis of Evil," you should always consult with a lawyer, and it will be time well spent. Here is a quick list of the handful of situations in which I would recommend getting legal counsel involved:

1. Whenever an ex-employee has engaged in some type of legally protected activity (internal complaint of discrimination or harassment, truthful testimony, or charge or lawsuit) and you are not planning to treat her exactly the same way that you treat everyone else.

2. If your failure to give an ex-employee a letter of reference might look discriminatory to an outsider. (For example, you are giving letters of reference to all of your Anglo and African-American employees whose jobs are being eliminated, but you are not giving one to your only Hispanic employee, who happened to have attendance problems. This might be fine because of the attendance problems, but it would not hurt to have an attorney make sure you can justify the differential treatment.)

3. Any time you are considering providing an affirmatively negative reference about an ex-employee.

4. Any time an employee is being fired for an "Axis of Evil" offense but you believe you should not provide truthful reference information.

(Again, don't forget to check your state's laws about blacklisting and references before you provide any information about a former employee.)

Happy Memorial Day weekend, everybody! Top stories this week:

When are employers liable for the bad behavior of their customers? The sexual assault charges against Dominique Strauss-Kahn, former head of the International Monetary Fund, who allegedly attacked an African-immigrant maid in his hotel room in New York City, have spurred some interesting discussion about female employees in the restaurant and hospitality industry, and their exposure to sexual harassment. According to some commentary, women in these industries -- particularly housekeeping staff and waitresses -- are seen as "fair game" by certain guests and patrons. The fact that many of the women are also immigrants may make them even more vulnerable to such behavior.

I have to admit I have a personal bias. I believe it. I was a waitress a very long time ago (when sexual harassment was still legal -- does that date me, or what?), and I do remember getting a lot of comments from male customers that I never got in any other job before or after.

Anyway, employers in these industries and others should be aware that they can, under certain circumstances, be liable if their customers harass their employees.

A bit of history/nostalgia: In 1976, our nation celebrated its Bicentennial. It was a big deal -- even Mickey Mouse, Donald Duck and Goofy, and Kiss, got into the act. Around that time, the owner of an office building in New York City (what is it with that town, anyway? Kidding!) decided that it would be a good idea to require female employees to wear a "Bicentennial costume," consisting of an American-flag poncho with big gaps in the sides and nothing under it except undies, hot pants, and sheer pantyhose. The plaintiff, who was a lobby attendant and had not intended to become a worker in the sex industry, complained that the immodest costume caused her to be hit upon. She was eventually fired for refusing to wear it.

(Imagine being scantily-clad against your will in an elevator with some newly-separated middle-aged lecher in aviator glasses and a leisure suit who's just discovered the sexual revolution. And no concealed-carry laws back in those days, either. What a nightmare.)

Anyway, the EEOC sued, and won. The case is a landmark, in part because the court found that even though the sexual harassment was by visitors and tenants, and not the employer, the employer was liable for forcing the women to dress in a way that invited harassing behavior.

You may be thinking, Well, then, why don't we ever hear about waitresses at a business like Hooters suing for sexual harassment? The difference, I think, is the nature of the business and the reasonable expectations of female employees when they go to work. If you choose to work at a place called "Hooters," presumably (WARNING: LINK CONTAINS CONTENT THAT SOME MAY FIND OBJECTIONABLE) you know what you're getting into and assume some amount of risk. This is not to say that a "Hooters Girl" couldn't have a valid claim of sexual harassment, but she is probably not going to be able to assert a claim based only suggestive comments or propositions by customers, or even a pat or two.

By contrast, in the "Bicentennial" case, and in most housekeeping and waitressing jobs, the women are not knowingly taking jobs in an industry in which sex is the "product."

I have not seen any indication that the hotel where Mr. Strauss-Kahn was staying should be liable for his alleged behavior. But employers in the retail and hospitality industries should make sure that they have processes in place to deal with customer harassment, whether it's on the basis of sex, or race, or national origin, or any protected category. Employees should know to report inappropriate behavior by customers and that such behavior will not be tolerated.

State laws requiring E-verify are legal, says Supreme Court.  A 5-3 majority of the Supreme Court upheld yesterday the Legal Arizona Workers Act, which requires employers to use E-verify and allows the state to revoke the licenses of businesses that knowingly hire illegal workers. The plaintiffs, who included the U.S. Chamber of Commerce and immigrants' rights groups, had argued that the Arizona law was preempted by the federal Immigration Reform and Control Act of 1986. Chief Justice John Roberts wrote the majority opinion, joined by Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. The dissenters were Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Justice Elena Kagan recused herself because she had been involved in this case while she was Solicitor General.

Interestingly, the Arizona law had been enacted during the administration of Janet Napolitano, now head of the Department of Homeland Security for the Obama Administration, and upheld by the often-liberal U.S. Court of Appeals for the Ninth Circuit. Immigration politics certainly does make strange bedfellows.

Three other states -- Mississippi, South Carolina, and Utah -- have similar laws, and we can expect to see many more now that the Supreme Court has given them the thumbs up.

NLRB Facebook cases -- have they jumped the shark? The National Labor Relations Board is issuing complaints right and left against employers who have allegedly fired employees for bad-mouthing the employers on Facebook. This has prompted one commenter to ask whether these complaints are even "news" any more. The NLRB's position is that social media postings are often "protected concerted activity." Employers should certainly be aware of the risks of taking action against employees based on their social media postings and should consult with counsel before doing so. But otherwise, it probably does make sense to chill until we get some actual decisions from the Board and the courts.

Obesity, work linked. The other big story in the news this week was that sedentary jobs  . . . make you fat! An obvious point, to be sure, but wouldn't fresh air and exercise during the day be a great wellness initiative? And, does this mean that we can now collect workers' comp benefits for obesity-related diseases, like diabetes and hypertension? Te-he.

This February ("Valentine's Month"), there was a lot in the news about "workplace spouses." Last week, I was interviewed about this by Denis and Shelli of WSBT radio in South Bend, Indiana.

My own opinion is that the "workplace spouse" phenomenon is an overhyped way to put a new spin on the very old problem of sexual attraction in the workplace. (Sexual harassment and workplace dating are so '90's.)

What is a workplace spouse? The news accounts define it as a closer-than-normal relationship between two co-workers. But for the term to have any real meaning, it has to apply to co-workers who at least have the possibility of becoming sexually attracted to each other. For example, two heterosexual girlfriends who spend a lot of time together and talk about everything may be BFFs, but they are never going to be faux "spouses."

I have long held the view that extramarital affairs at work are the number one cause of sexual harassment lawsuits against men. They have an affair, she wants to get married, he chickens out, and she's angry and wants revenge. I'm not saying that every sexual harassment complaint fits this scenario (by no means!), but just about every lawsuit I've been involved in did. Because workplace "spouse" relationships can lead to extramarital affairs, folks need to be very careful not to let these relationships escalate. 

How can you have a close friendship with a co-worker without letting it destroy your marriage or your career? Here are a few tips:

1-Create a dividing line that you won't cross. Be friends if you must, but don't talk to your fake spouse about things like your sex life or your marital problems ("My wife doesn't understand me"). Your fake spouse shouldn't know anything about you that your real spouse doesn't know (unless you're telling your fake spouse about the awesome gift you purchased for your real spouse for a birthday or anniversary). Nor should you violate your real spouse's privacy with your fake spouse.

2-Don't idealize your fake spouse. At work, we are all clean, groomed, fragrant, dressed nicely, and well-behaved. (Most of us, anyway.) We may or may not be so at home, and none of us are able to be that way all the time. Your fake spouse probably looks just as bad first thing in the morning as your real spouse does, also has "issues," and burps and watches bad TV shows. Remind yourself of that as often as needed.

3-If you're single and your fake spouse is married, respect the marriage. If you sense that a "crush" is developing (either from your end or his/hers), start distancing: talk about the real spouse and kids frequently (in a positive way), refer to your own boyfriend/girlfriend, etc., etc. If necessary, limit your contact with your workplace "spouse."

4-Be sensitive to your co-workers' feelings. One big risk involved in "workplace spouse" relationships is the perception of co-workers that you are being cliquish. If one party to the fake spouse relationship is a supervisor, even worse -- there may be perceptions of favoritism or discrimination. Even if your fake spouse is your "favorite," include your co-workers in conversations and activities as much as you can. The presence of co-workers will also help you with Tips 1 and 3.

5-Be sensitive to your real spouse's feelings. Just about every article on workplace spousehood mentions that real spouses are uncomfortable with these relationships. Why wouldn't they be? If your real spouse feels jealous or threatened, BACK OFF! Your real spouse ought to come first. Even though some articles suggest that you and your workplace "spouse" and your real spouses can get together as a foursome, even that is risky if there is already a strong attraction between you and the workplace "spouse."

NEWSWORTHY NUGGETS . . .

Here are some legal developments from the past week. 

Defense of Marriage Act no longer defensible, Obama Administration says. Attorney General Eric Holder has said that the Administration no longer intends to defend challenges by legally married same-sex couples against the Defense of Marriage Act, which interprets "marriage" for purposes of federal law as being between one man and one woman. The Administration, which contends that the DOMA violates the equal protection clause of the Fifth Amendment to the U.S. Constitution, does intend to continue complying with the law, however. The new position (and future evolutions) should be closely watched by employers because it will have an impact on the definition of "spouse" for purposes of the Family and Medical Leave Act and the Genetic Information Non-Discrimination Act, as well as many other laws.

In a related development, the Wall Street Journal Law Blog reported yesterday that the State of Hawaii has legalized same-sex civil unions.

Mea culpa. I closed last week's post with a snide remark about Madison, Wisconsin, school teachers calling in sick so that they could protest Governor Scott Walker's budget initiatives. I felt (and, honestly, still feel) that the teachers should be willing to make some concessions to help keep the state from going under. But this week, I saw that some attorneys are now charging an obscene $1,000 an hour for their services, so as an attorney (though not a $1,000-an-hour one), I feel bad for picking on the teachers.

Nagging employee about return to work from FMLA leave is not cool, court says. A federal judge in Arkansas recently denied summary judgment to an employer on an "interference" claim under the Family and Medical Leave Act. The employee was out of work for back surgery (apparently legitimate), but her supervisor called her once a week to ask when she was going to return. At one point, the employee allegedly asked whether her job was at risk, and the supervisor allegedly responded, "You need to come back as soon as you can." Worried about her job, the employee returned to work a week early but was terminated a short time later for suspected theft. (The court found in the employer's favor on the termination, however, saying that there was plenty of evidence to support the employer's good-faith belief that the employee had stolen or tried to steal from a co-worker.) Hat tip to ABA Journal Weekly Newsletter.

Bad PR. Monique da Silva Moore has filed a putative class action against international public relations firm Publicis Groupe and its U.S. public relations affiliate, MSL Group, for systemic sex discrimination. Ms. Moore's suit alleges that the work force is approximately 70 percent female but that only 15 percent of its leadership positions are held by women. The suit also alleges that women are paid less than similarly situated men. The suit has just been filed, so the defendants have not had a chance to respond yet.

Who, if anybody, has the right to use the "N" word in the workplace? Should an employer treat African-Americans who use this language differently from non-African-Americans who do?

These are perennial questions that arise during harassment training, and there has been little guidance from the courts or the EEOC. The opinions of individual lawyers no doubt vary. My own advice has been to ban the word in the workplace no matter who says it but to use some discretion (and, yes, a bit of a double standard) in enforcing the ban. In other words, I would usually recommend being more lenient with African-Americans who use the word than with non-African-Americans who use it.

Does this mean I advocate reverse discrimination? No. To me, it is a matter of common sense and common courtesy. If I make a mistake at work and call myself "stupid" or "forgetful," that is nothing. But if my boss or my co-worker says I am stupid and forgetful, I am going to be insulted. If I criticize a member of my family, it's no big deal (to me, anyway) because we all know that I really love him or her. But let an outsider make the same criticism about my loved one, and that will get my dander up. The same principle applies to comments about my sex, my age, my nationality, and my religion, and I daresay for yours as well. 

This is why (I think) most people's natural reaction to the "N" word is to be repulsed if it comes from a white, or Asian, or other non-African-American, but to be relatively unaffected when it comes from an African-American. And this is my justification for having a reasonable double standard in the workplace. I'd apply the same standard to the use of any epithets or disparaging talk about any "protected category" -- including race, sex, ethnic group, age, or religion.   

A recent decision from a federal court in Pennsylvania addresses this issue in the context of a reverse race discrimination case. The plaintiff, a white anchorman for a Philadelphia Fox News affiliate, used the "N" word in a news meeting. He did not use the word as an epithet but in the context of a legitimate news discussion. However, instead of saying "the 'N' word," he said the "N" word, thereby offending several of the people in the meeting. He was eventually terminated, and he sued for reverse discrimination, contending that he was treated less favorably than African-American co-workers who used the word with no consequences. The court denied the station's motion for summary judgment, meaning that the case will now go to a jury.

As I read the court's decision, the judge is not necessarily discrediting my "reasonable double standard" approach. The anchorman had evidence that he may have been a victim of sabotage by his co-anchor, which resulted in his being sent to an employee assistance program and finally facing the ultimate sanction -- termination -- instead of, perhaps, discipline and being required to apologize to any co-workers who were offended. Although there was no dispute that the anchorman had used the word in the context of a news discussion and not as an epithet, he was terminated. Meanwhile, according to his evidence, an African-American co-worker used the word as an insult in another meeting, and everyone merely laughed.

In other words, the court believed that there was evidence both of a double standard and a disproportionate one.

**In ruling on a motion for summary judgment, the court is required to view any disputed facts in the light most favorable to the non-movant. In this case, the employer moved for summary judgment, which means that the court had to view any disputed facts in the light most favorable to the plaintiff-anchorman. When the case goes to trial, the employer will have the opportunity to present more evidence in its favor.** 

The decision is worth a read, and the details create a good deal of sympathy for the anchorman-plaintiff. That said, I can't help thinking how much trouble he would have avoided if he had simply followed basic rules of common sense and common courtesy, and used the well-known euphemism for such a loaded word . . . assuming that it was necessary for him to refer to the word at all.

(Hat tip to Bill McMahon for this topic.)

You kiss your mother with that mouth? Evil HR Lady has an entertaining discussion about a nasty e-mail she received from a "cusser" who didn't like the fact that she had expressed opposition to cussing at work. (Not all cussing -- just the "every other word out of your mouth" variety.) Anyway, the e-mail contained -- you guessed it -- cussing just about every other word. To provide the flavor of the e-mail without being too explicit, HR Lady replaced the actual obscenities with "squid lips." The result was funny and made the e-mailer look pretty foolish.

All of which raises the question -- does garden-variety cursing, not directed at an individual, create a hostile work environment? Some of Evil HR Lady's commenters thought so, but I beg to differ.

There are hostile work environments, and then there are "hostile work environments" -- the type that create employer liability for workplace harassment. Excessive cussing can certainly create the first type of hostile environment, in the sense that it can make the workplace unpleasant, hurt morale, and create stress, but it doesn't usually create legal liability for harassment.

To create liability for discriminatory harassment, the cussing usually has to have some additional element. Cuss words based on an individual's race, sex, or other protected characteristic are a problem. Cuss words that are directed at an individual aren't good, either. And of course, obscene language that is sexual in nature can most certainly create liability for sexual harassment.

All that said, I agree with Evil HR Lady and her more civilized readers that excessive cussing in the workplace is something to be discouraged. In addition to all the reasons she cites, I would add that employees often perceive an unlawful hostile environment when the boss cusses too much, and are more prone to file lawsuits. Even though these lawsuits are eventually dismissed, why would any employer want to go through this trauma if it's possible to avoid it?

Years ago, I defended an employer against a pro se plaintiff who was a Seventh Day Adventist. Among other things, the plaintiff claimed religious harassment because his boss frequently said "GD" as an expletive. Although the language was not directed at the plaintiff, it was offensive to him because of his religious beliefs. It's also not uncommon to hear, in sexual harassment lawsuits, plaintiffs citing their bosses' use of the "F" word or a synonym for a female dog to describe women they don't like.

From a pure business/public relations standpoint, indiscriminate cursing can be embarrassing, too -- especially when it's documented, as Goldman Sachs recently learned.

Again, why subject yourself to lawsuits if you don't have to? Delete your expletives!