Pilot plant opportunity becomes one woman's Acme nightmare-- could a lawsuit have been avoided?

A pilot plant opportunity for a woman employee turns into a harassment nightmare. Lewd comments, non-private changing quarters and little management interference lead to a lawsuit. How could this situation been avoided?

When Acme’s R&D lab develops something promising, the project moves to a pilot-scale skunk works operation on the plant floor for a feasibility test in the real world of dirt and grime. The pilot lab is staffed by regular employees who volunteer to be part of Acme’s “next big thing.” They spend their days manufacturing new products, fine tuning new technologies and improving existing processes. If the initiative works out, it graduates to more enduring arrangements in the plant. Similarly, a volunteer who works out gets in on the ground floor of a new revenue stream and gets a financial stake in the outcome. Those who don’t work out can go back to their regular jobs, but with seniority reset to zero.

Acme’s latest product initiative requires thermal processing of permanent dyes in its manufacture. The last thing Acme needs is dye stains throughout the plant and especially in the regular mezzanine locker rooms. To keep that dusty dye powder from wafting out to the rest of the facility, the plant engineering group walled off a section of the pilot lab and installed a dedicated ventilation system to hold the space under a slight vacuum. To prevent workers from trailing colorants behind them on the way to the cafeteria and at shift changes, the layout includes a break room for those working in the plant-within-a-plant.

The workers there use nonwoven, laminated coveralls to keep the dye away from their skin. You could always tell when someone made a mistake; they had deeply colored splotches on their hands, fingers, cheeks or chin for several weeks.

The skunk works operation produces its share of heat. In response to worker complaints, plant engineers added two changing rooms that flank the break room. Workers could now leave their street clothes in the changing rooms and wear only the coveralls in the warm processing environment. One wall of each changing room is outfitted with racks of open-mesh wire baskets to hold street clothing. These are secured with the workers’ personal padlocks.

The day Acme announced a new project in a flyer handed out to employees at the beginning of each shift, Louise Yanna was one of the first to volunteer her services. The situation was ideal for her. A relatively new employee who regretted missing out on the dot com bubble, she is young, has little seniority at risk and can see great personal financial potential in a positive outcome. Besides the base pecuniary motives, Louise truly believed in the new product that was the current center of attention. Even if things don’t work out, she has plenty of career remaining in which to recover.

So, Louise suited up every day and did her dead-level best to make her part of the project a success. After her first week in the skunk works, though, she noticed that some of her coworkers regularly made comments about her looks whenever she walksed through the area. She considered the comments offensive and suggestive, but never did anything about the situation.

When she casually mentioned this to Anne Jupare, one of the other women working in the area, Louise learned that she wasn’t the only target. Anne told her she’s lucky. Some of the other women also had complained of inappropriate touching.

This news infuriated Louise, who, on behalf of the other women working in the area, complained to Marty Grah, the project manager. He walked into the area immediately and talked to the people she accused. This put a stop to the boorish behavior, but for only a few months. Personnel turnover in the skunk works, always a problem for Acme’s new projects, brought in a new cast of characters and the comments began anew.

Again Louise complained to Marty and, as before, the comments stopped quickly, but only for a few days. When they started again, they were being delivered in Spanish. She didn’t need to be fluent in the language. She knew the men were still making what she considered to be lewd comments. Each time one said something with a big grin, the others would snicker and stare at her before returning to their work.

One day, following her normal routine, Louise went into the women’s changing room to swap her street clothes for coveralls. She heard a loud noise coming from the adjacent break room. It sounded as if one of the tables was being slid across the floor. Shortly thereafter, she heard some muffled chuckling from at least two people. As she removed more of her street clothing, the volume of laughter increased. That’s when she noticed the hole in the wall separating the changing room from the break room.

She complained again and management responded by repairing the hole. Several months later, Louise noticed that there was another hole in the wall, but in a different, less obvious location.

She registered another complaint with Marty. This time, however, one of the executives from Mahogany Row actually walked down to the skunk works area, donned a set of coveralls and inspected the situation firsthand. Within a week, the maintenance department had installed heavy paneling on both sides of the walls separating the changing rooms from the break room.

But that action made no difference to Louise, who already decided that henceforth she would change into her coveralls in the regular locker rooms. It was inconvenient, but the option offered her a bit more privacy. Not surprisingly, the other females in the area followed suit.

Within a week, Marty was getting complaints about “his dyes” being all over the women’s locker room. When he confronted her and insisted that she again use the skunk works changing room, it dawned on Louise that there is probably even greater personal financial potential in a sexual harassment suit. Besides, she still has plenty of career remaining in which to get over this Acme emotional trauma fiasco.

How could this situation have been avoided? Will Louise’s suit result in any unforeseen downside consequences in her future? Did management provide an appropriate response to her complaints?

A corporate consultant says:

This case could have been avoided rather easily.

Although Marty responded immediately to Louise's first complaint by having a talk with the people she had accused, he did nothing further. He should have done more because the potential for litigation was so obvious. At the first hint of complaints of this nature, any organizational exec should immediately anticipate more of this behavior, and get in touch with the HR and legal departments to determine how best to protect the company.

Marty should have worked to ensure an appropriate policy statement was written and published, complete with clearly defined consequences for noncompliance. He should have presented this policy personally to the offending department, and each person in the department should have had to acknowledge his understanding of the policy with a signature. They should have provided this same briefing to each new employee.

Additionally, the very first time they discovered a hole in the wall, Acme should have made a second instance impossible. Simply repairing the hole was not an adequate response. Had this been done, there would have been no reason for Louise to have begun using the regular locker rooms.

As it stands, might her suit result in any "unforeseen downside consequences" in her future? Perhaps. If it comes to a choice between hiring someone who has initiated suit against a former employer, however justified, and hiring someone who hasn't, it's reasonable to think that having filed suit wouldn't work in her favor with prospective employers. This possibility, though, might not be sufficiently compelling to persuade Louise to abandon her intent to litigate.

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

An academician says:

My initial reaction was, “Not again!” Sexual harassment seems to be a tough issue for employees and managers to understand, much less enforce.

The basics are simple. Every company should have a clearly stated policy on harassment, which, if necessary, should be posted (in the employee’s spoken language) in prominent locations. Secondly, employees should be educated about the policy and -- this is critical -- made aware of which specific behaviors are appropriate and inappropriate. Some employees have a tough time understanding that “just kidding around” with a woman about the size of her breasts or butt is clearly inappropriate.

Further, the procedures to report complaints should be well known and easy to execute. Complaints should be reported directly to human resources so that there is some assurance that the compliant is properly recorded and adjudicated. Finally, the company needs to take action, and take action quickly.

Would that have eliminated the problem at Acme? Probably, but who knows. Louise complained to Marty initially and Marty talked to the people whom she accused. But Marty is not their boss and probably had very little authority in their eyes – he’s not somebody one could take too seriously. I think Marty should have gotten HR and the employee’s boss involved up front.

To Acme’s credit, they did take action, particularly with respect to the changing room, although their response to the employee comments seems to have been pretty inadequate. Will this affect Louise’s future? Could be. It seems that companies don’t take kindly to whistle-blowers and employees who file lawsuits, which, unfortunately, is one reason such problems are probably underreported.

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

An attorney says:

This vignette makes one wonder how many complaints Acme has to receive before actually solving a problem.

There are four critical pieces to any employer’s effective antiharassment program: (1) a policy -- and communication of that policy to employees; (2) a prompt investigation into a complaint; (3) resolving the problem if one exists and (4) disciplining the perpetrator. Acme appears to have fallen down, or at least stumbled dramatically, at each and every step. First, there is no indication that Acme has a policy or communicates it to employees. It is hard to believe that new employees in the skunk works were schooled in the company’s harassment policy if their first prank was to make lewd comments about female workers.

Acme then proceeded to make four feeble attempts to correct the problem. It shouldn’t require an engineer or an architect to predict that workers who make a hole in the wall to peer at the opposite sex would not repeat the behavior once the first hole was repaired.

Acme’s biggest blunder, however, was its complete failure to discipline anyone for engaging in offensive comments, regardless of the language, for touching the women, or for making the peephole. Every single one of the perpetrators should have received a written warning. If they repeated the inappropriate comments or conduct, they should have been terminated.

Perhaps Acme’s management has been overcome by the fumes of wafting dye powder?

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

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