It's all fun and games until someone fires a harassment suit

Continuous improvement programs can sometimes hit a snag (or two)

 

 

The Acme defense plant in Howe's Bayou, La. is doing quite well these days. Pentagon contracts for countless gallons of the company's high-purity trimethyl flubdub provide for a rather healthy accounts receivable total each month.

Andy Enroon has been working at Acme for his entire career. He dropped out of school in the late 1950s to sweep Acme's floors. He acknowledged his limitations and kept his ego in check. Andy kept his nose to the grindstone and his ear to the ground. The intervening years saw him work his way up the food chain to land his current position as assistant plant manager.

One reason that Acme's cash flow is so good is the Six Sigma quality improvement program the company introduced, nurtured and supported during the past four years. The outside gurus and trainers weren't just blowing smoke.

Andy was perfectly situated to be a key player in the Six Sigma game. He had the data that turned into the key performance indicators the program required. He knows everyone and everyone knows Andy. In fact, Andy was the first employee to become a certified Six Sigma Black Belt. That role had him meeting with, coaching and counseling every employee, individually and in groups.

Once Acme set the quality groundwork, the fiscal tide turned, and purchase orders began arriving in bushel basket quantities. Acme had to begin hiring strangers from outside the immediate environs. Most appreciated being self-directed and having their work evaluated on the basis of objective Six Sigma performance measures instead of being reviewed by a cranky boss that didn't really "get it." On the other hand, there were a few that struggled with the performance expectations of their peers.

Among the newer employees, Hazel Knutt is an affable young lady, but certainly not the brightest bulb in the chandelier. Although Andy knew the high-level statistics that characterize a Six Sigma program are well beyond her grasp, he was aghast to discover that even after training, Hazel struggled with tasks as simple as completing a check list without error.

Another recent hire and Hazel's good buddy out on the plant floor is Roxanne Roules, a stereotypical party animal. A real looker, Roxy usually arrives late on Monday morning. In spite of the performance metrics highlighting her less-than-stellar output, she views her job as a never-ending company sanctioned gabfest and social mixer.

Several times, John Darme, the militarily crisp and demanding supervisor heading the department where Hazel and Roxy "work," cautioned both women that they had best clean up their acts and get with the program. With his own workload being higher than normal, John woke up one morning and realized that both ladies have been on the payroll for nearly four months, putting them safely beyond the company's published three-month probationary period.

One perfectly good sunny Tuesday in late spring, Andy was called into the plant manager's office and handed an official looking envelope full of court papers that alleged Andy Enroon was guilty of sexual harassment with respect to Hazel Knutt and Roxanne Roules.

Andy was floored and denied the allegations categorically for the next few hours as a parade of executives trooped through. By the time Andy walked back to his office in a daze just before lunch, he found three of the people that work with Hazel and Roxy complaining about having to pick up the extra load. That's when Andy decided it was time to sever Acme's relationship with Hazel and Roxy. This was something he wanted to do personally, not through John Darme or anyone in HR.

Both women became rather vocal in the next few minutes, yelling in a threatening manner that it was unfair, illegal and going to be big trouble for Acme. Before it turned ugly, the plant's security officer escorted Hazel and Roxy out the front door. Their parting shots included nasty comments about a lawsuit for retaliatory discharge.

When John gathered his crew together to explain that both women had been terminated, some of the workers informed him that on several occasions they had heard Hazel and Roxy discussing ways to get rid of the boss.

Later that afternoon, John and the security officer inspected the two recently vacated lockers. That's when they discovered several manuals on sexual harassment and a booklet that described the proper words to use when making a complaint to management.

How could this situation have been avoided? Is Acme in trouble?

A corporate consultant's response:

Andy's deliberately excluding HR from the termination process, once he knew a complaint had been filed was wholly indefensible. Despite the fact they filed the complaint before his action, Andy, more than any casual factor discussed below, put Acme at risk. There were at least four other opportunities to have avoided this problem.

Despite being a Six Sigma environment, it sounds as if Acme doesn't have metrics in place to monitor job performance. This would have forced Darme to document worker's performance and provide evidence-based measures to justify future disciplinary actions.

Upon discerning Knutt's incompetence, Andy should have notified Darme, documenting his concern about her ability and suggesting appropriate responses.

Third, it's clear that Darme should have acted earlier. He had adequate cause to take action even without Andy's information. Having failed to do so, however, does not negate the fact that Darme could have placed both Knutt and Roxy back on probation. In this respect, Darme failed to perform his managerial function.

Finally, some responsibility for this problem must be borne by Acme's HR department, as it seems that the hiring process didn't include adequate assessments of the candidate's ability to perform the job.

Francie Dalton

Dalton Alliances, Inc.

Columbia, Maryland

410-715-0484

fax: 410-715-8593

fmdalton@daltonalliances.com

http://www.daltonalliances.com

An attorney's response:

Acme's mistake was allowing any supervisor to terminate any employee for any reason without the approval of Human Resources. Had Andy consulted HR, he likely would have learned that terminating an employee on the heels of her complaint about sexual harassment leads to a claim that the employee was terminated for making the harassment complaint, a separate and independent violation of the law.

Andy also would have learned that Acme can't terminate an employee for lack of productivity without giving one or more warnings and an opportunity to improve. This will add fodder to Hazel's and Roxanne's claims that they were terminated for making a complaint about harassment. Most employers do warn about performance problems prior to discharge. If they can show that employees who didn't complain about harassment were given warnings prior to discharge for their performance, it will make their case even stronger.

Not that Acme's quiver is short on arrows. Two pieces of evidence suggest invented sexual harassment. Coworkers overheard them discussing ways to get rid of the boss, and the booklet in the locker suggests this may be a trumped up charge. If their complaints about Andy were not made in good faith, they have no protection from a discharge in retaliation for making the complaints.

Had Andy not discharged the two women so precipitously, Acme might have had an opportunity to investigate the harassment claims and perhaps uncover evidence of a fabricated complaint. Were there witnesses? Did they complain to anyone? Did they follow the procedure to report the harassment? Did any employee witness them looking distressed after an encounter with Andy?

While the answers may have helped label their claims as fraudulent, the company will now have to expend its time, money and energy defending a law suit that Andy made considerably more difficult by his act of discharging them.

Julie Badel, Partner

Epstein Becker & Green, P.C.

Chicago, Ill.

312-499-1418

jbadel@ebglaw.com

An academician's response:

Oh, boy. It's cases like this that make my blood boil.

If Acme had a valid selection process, Hazel and Roxanne would never have been hired. It doesn't take much to sort out the losers. Even so, Acme still had the three-month probationary period to assess the pair. Shame on John! But let's not put all the blame in his lap. The Human Resources Department should have kept track of the time and should have put the screws to John to file the probationary report within the specified time. So shame on HR!

The guideline here is documentation, documentation and more documentation. Problems with our two employees and warnings should have been put in writing.

As to the sexual harassment, Andy should have been well-trained in what's appropriate conversation and behavior. If he violated those rules, Acme should take action against him.

Finally, it wasn't Andy's responsibility to terminate Hazel and Roxanne. He should have gone to Human Resources and presented his case and let Human Resources work through the due process that's required for a termination.

As to how to disentangle the mess that Acme finds itself in now, well, it's now in the hands of the attorneys. Good luck! Most of this could easily have been avoided.

Homer H. Johnson, Ph.D.

Director - Graduate Programs in Human Resources, Industrial Relations and Organization Development

Loyola University Chicago

Chicago, Ill.

312-915-6682

hjohnso@luc.edu

Our "In the Trenches" stories are created as a learning tool; the names of the companies and the people described within them are fictional. 

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