The double whammy

Acme contends with gender stereotyping, diversity and righteousness

The reason Acme bases its diversity initiative on the broadest definition of the concept is simple. In the five years the voluntarily adopted program has been in effect, it has proved itself to be good for business, plain and simple. Armed with the ability to bring diverse viewpoints, people, cultures and ideas to bear, the problems and perils Acme has struggled with in the global marketplace have been elevated to win-win arrangements that customers simply adore. To celebrate its successes and promote the program, Acme has a designated bulletin board on which it proudly hangs its diversity posters, each of which features individual photos, biographies and activities of various members of the workforce.

A typical example is Bob Boushka, one of Acme's top customer service reps, who has a following among clients. He exudes some sort of telephonic magic that attracts them, and several of Acme's repeat customers specify in their purchase orders that Bob is to be involved in their accounts. Working from his cubicle at the interior of the building, quiet, shy Bob doesn't make waves, keeps his nose to the grindstone, and meets or exceeds the key performance indicators established for his job classification. But he's doing it under battlefield conditions.

Bob is mocked and parodied by coworkers because he doesn't fit their description of a 'manly man. The source of the problem is his somewhat feminine behavior and speech patterns. When Bob gets stressed, his voice goes into its high-pitched mode. He makes good money; he's the sole breadwinner and he fears that if he raises a stink about it, corporate retaliation would result in job loss in an economy that offers few such lucrative employment alternatives.

Bob copes by ignoring the taunts and keeping busy with the work customers throw his way. As a result of these work habits, Bob has accrued quite a bit of vacation time. Recently, quite out of character, he dropped everything and took a sudden one-week vacation without giving much explanation, telling his boss merely that he had some urgent personal business that couldn't wait.

While he was away, several employees spotted Bob on a television newscast. He and his gay partner of 24 years flew to San Francisco to get married before the opportunity evaporated. When he returned from his honeymoon, the office grapevine was abuzz. Bob's work environment devolved into something worse than ever.

Denny Nikwittey, another long-term employee, also has a record of satisfactory job performance. Unlike Bob, however, Denny's work area is located immediately across the hall from the diversity bulletin board and in plain view of customers and anyone else who might be walking through the office area. Also unlike Bob, the more outgoing Denny has become a bit of an activist recently. He initiated a one-person crusade to save the world as he knows it. His mission is to expose and counteract the evil and sin surrounding him that's making his work life unbearable.

His opening volley in this war came during the week his boss was out of town at a trade show. Denny hung a series of large, homemade signs above his cubicle that displays scriptural quotes condemning homosexuality. He even placed a large-type bible at the corner of his desk, in case anyone needed to verify the accuracy of his signs. He also injected his crusade into every business-related conversation he had with coworkers.

When Andy Rhodagen, Denny's boss, returned on Monday, he called Denny into his office and queried him about the reasons and purpose for the signage. As Denny saw it, his religious rights were being violated by the homosexuality that Acme condones. He added that his beliefs required him to face evil bravely wherever it appeared and to do his absolute best to vanquish it to the lowest depths of hell.

Andy responded that diversity is good for Acme's business. He asserted that the people working for Acme were here because they demonstrated the business talents and attitudes that make the company successful. Andy informed Denny that if he didn't remove his signs before the end of the workday, the office maintenance crew would be instructed to remove them at night. Finally, he told Denny in unambiguous terms that he was not to post any signs again without corporate approval.

That evening, the office cleanup crew groused about the extra work involved in removing and disposing of the signs. Meanwhile, Bob's situation finally pushed him to the breaking point. He woke up Wednesday morning and firmly resolved to chuck it all and damn the consequences. Instead of going to his cubicle in the bowels of the building at his customarily early hour, Bob called in sick and sat at his kitchen table with a phone book searching for attorneys who could take his case of harassment due to his sexual preference to a successful conclusion. He continued to call in sick for an entire week and felt great relief when his very first lawsuit was filed the following Tuesday.

Which, incidentally was the same day that Denny showed up at the office and posted a new, fancier set of signs bearing the same messages as his old, handmade signs. Later that day, he was summoned to the conference room in the HR department to face Andy and the HR manager. Thirty minutes later, Denny found himself fired for insubordination and was promptly escorted out the door, along with his precious signs, to his car by a security guard.
How could this situation have been avoided? Does blind faith in a diverse workforce really make sense? Does Bob have a strong enough case to prevail? Does Denny have any possible recourse?

An attorney says:
For once, it appears that our good friends at Acme didn't shoot themselves in the foot.
Bob probably doesn't have a claim against Acme. Federal discrimination laws don't protect employees from discrimination or harassment on the basis of sexual preference. A few states and some municipalities have laws that prohibit discrimination for this reason. But unless Acme is located in one of those jurisdictions, Bob has no claim at all.

Even if Acme is located in one of those jurisdictions that provides protection to employees based on sexual preference, Bob is likely to lose his case. Most employers today have policies that prohibit the harassment of employees. Given Acme's progressive pro-diversity posture, one would expect Acme to have a policy prohibiting harassment, including harassment on the basis of sexual preference, if that characteristic is protected under applicable law. If that policy, as is customary, includes a procedure for employees to bring harassment complaints to Acme's attention, it appears that Bob has failed to do so, due to his fear of 'corporate retaliation. Generally, an employee who is covered by a harassment policy with a complaint procedure but who fails to take advantage of that procedure can't prevail in a lawsuit against the employer.

Denny, on the other hand, got what he deserved a warning that his posters wouldn't be tolerated and termination when he posted new signs without corporate approval. The discrimination laws require an employer to 'reasonably accommodate'an employee's religious beliefs, such as allowing an employee to miss Saturday overtime work to attend religious services, provided it doesn't prove to be a hardship to the employer. But the law doesn't require a private employer to tolerate an employee's expression of religious or political beliefs in the workplace, especially when that expression offends other workers and contravenes company policy.

One question remains. Does Acme have a policy or practice of terminating employees who give a false reason for an absence?

Julie Badel, partner
Epstein Becker & Green P.C.
(312) 499-1418
jbadel@ebglaw.com

A corporate consultant says:
And so we confront another tough truth of life: It's not enough to do the right thing; you have to do it in the right way. Launching a 'diversity initiative'and featuring examples on a bulletin board testifies to a decision Acme made. A decision, however, merely precedes, but is not synonymous with, an implementation plan. A major component of any good implementation plan is to identify potential barriers to implementation, and develop tactics for neutralizing or overcoming them. Had Acme lent its intellectual capital to how they would ensure the successful implementation of its diversity initiative, the events of this case would have emerged instantly as predictable.

The primary factor, then, in avoiding this case would have been to augment the good intention behind the diversity initiative with a well-constructed implementation plan.

Next, Acme's failure to act swiftly on two occasions not only cost them Bob, but exacerbated their culpability.

First, Andy shouldn't have waited until the end of the work day to remove Denny's signs. The signs should have been removed immediately, in full view of other workers. Then, Andy should have terminated Denny. No second chance no hesitation because Denny's workplace behavior was illegal, and put Acme at risk of litigation. This isn't about who's right and who's wrong; it's about protecting Acme from a lawsuit. Even if Denny is right in his beliefs, Acme can't allow its workplace to function as a venue for the prosecution of personal agendas.

Think firing Denny is too severe? If so, then I hope you're not in charge of any safety or risk-management programs. Part of any executive's role is to protect the firm from unnecessary risk but the function of protecting anything won't be successful if it's done passively. Executives have to be aggressive and vigilant about identifying prodromal states, so they can implement adequate protections in advance. If you wait to protect until you need the protection, it's probably too late whether the subject is national defense or sexual intercourse. Denny is the personification of a prodromal state. What's the point of merely chastising him? Even if Acme had been successful in preventing him from putting up more signs, his admitted zealousness is a predictor that he would express his voice in other ways ways that can't be monitored but put Acme at risk. He's gotta go before he does further damage, not after.

Next, Andy (or, at his instigation, the HR executive) should have immediately called an 'all hands'meeting to clarify legal issues regarding workplace discrimination, and to review Acme's policy. Subsequently, Andy should have quietly visited each of those who might have been most offended by Denny's signs, to show awareness and concern, and to inquire about the possibility of other, less visible demonstrations of workplace prejudice.

There was a window of opportunity during which Bob could have been retained and Acme's culpability would have been eliminated. Andy hesitated and Acme lost.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

An academician says:
Let's take this one item at a time.

First, I think Bob has a good case. The law states that the employer is liable if it knew or should have known about the misconduct, and yet failed to take prompt and reasonable corrective action. It appears that Bob has suffered harassment for some time and the conduct was widespread. Thus, the company (for example, the supervisors) probably knew or should have known about the problem, and apparently took no corrective action.

As for Denny, he is history. Some hateful behavior is illegal. He received his warning and persisted in the behavior. Therefore, his dismissal is appropriate. The company gets high marks for its handling of this case because its employees acted promptly and reasonably.
Could this have been avoided? Probably, in Bob's case. My advice is for the company to make sure that employees clearly understand the policies on discrimination and sexual harassment. Not only should the policies be posted, they should be explained and clarified through employee meetings (some people don't read). It should be emphasized that any inappropriate behavior should be reported immediately. Once reported, action should be taken promptly.

Prof. Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu 
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