In the Trenches: Acme learns a thing or two about anti-harassment policies

Based on a true story, fictional plant Acme learns that it better adhere to every detail of its anti-harassment policies. Only the names have been changed to protect the innocent.

Acme got its start 15 years ago as a third-tier supplier to the automotive industry. Recognizing that car parts had become mere commodities and customer loyalty was only as deep as the discounts Acme had to offer to keep the business, management realized that it had to diversify its market offerings if it was to remain viable. During the past seven years, Acme has become somewhat of a local conglomerate as it either controlled or purchased outright half a dozen smaller manufacturing plants in the tri-county area. With these acquisitions, Acme gained access to several non-auto markets as well as some interesting employees.

Acme’s three-building headquarters complex is where the company still produces a dwindling variety of widgets for domestic autos. That’s also where Hanyak Chinovniki, an émigré from eastern Europe, works in his tiny office near the docks. With a name like that, everyone at Acme took to calling him Han.
Short of stature, physically weak with a squeaky voice and nerdy-looking behind his granny glasses, Han is not your stereotypical idea of a Russian. Mousy Han is afraid of conflict, especially with the far more muscular, but less intellectually endowed, Acme workers.

Rumor has it that Han worked his way up the ranks in a government ministry in the former Soviet Union. He may have a heavy Russian accent that makes it difficult to communicate with him, but his mathematical prowess and attention to the minutiae of his job are flawless. Perhaps some of what he does is useless busy work. Nobody really understands his system.

He spends much of the day meticulously maintaining his mountains of paperwork and recording every detail concerning every incoming delivery of raw material and repair parts as well as outgoing shipments of finished goods. Without exception, if a truck enters the Acme yard, its driver won’t be able to escape Han running across the dock to collect his details. This level of attention even includes Acme’s own trucks coming in from the various Acme plant locations. Truly, the yard and docks are Han’s ministry portfolio and he hoards the data that, based on the number of inquiries he gets, many people seem to value.

But not everyone appreciates Han’s approach to business. At least one group of good ol’ boys at an Acme plant across town have been giving Han a hard time when they come to the headquarters campus. They pretend they can’t understand his English. Or they speak idiomatically and rely on regional slang to make it impossible for Han to realize they’re making fun of him. Periodically, they’ve played pranks on him and once set a little booby trap that caused books to fall off his shelf when he opened his office door.

Han, like every employee, signed Acme’s anti-harassment policy form the day he was hired. But being the consummate bureaucrat, he actually read every word of the underlying 16-page policy itself and knew every nuance the document contained. In spite of that, fear and implied threats made him think that it really might be much more prudent to remain silent about these events that have been going on for the past three months.

Even so, the office grapevine had one tentacle in the office of Warren Pease, Han’s supervisor. As soon as Warren heard the rumors about Han, he stopped what he was doing and went to investigate the matter. He walked down to Han’s office to get a first-hand account of what was supposed to have happened.

Han initially denied that anything happened. Patiently, Warren kept at it because he needed to confirm or deny the stories. After asking Han at least twice whether he experienced any problems, Han finally opened up.

Han then told Warren of the ethnic epithets. The mechanics had been calling him a dirty commie rat. Someone sent him a photo of a hammer and sickle through interoffice mail. Finally, Han said that he was “goosed” with a broom handle. Under further grilling, Han revealed the names of the two workers involved.

Warren left immediately and walked to the office building to speak with Jim Naziome, the mechanics’ supervisor. Instead of eating lunch that day, Jim drove to the other Acme plant to confront the two mechanics. In separate interviews, each denied Han’s allegations. Nevertheless, Jim warned them that such behavior is unacceptable and that they would be fired if Han’s complaints could be proven.

When he returned to headquarters, Jim went directly to Warren’s office to report on his conversation with the two mechanics. Near the end of the shift, Warren returned to Han’s office to pass on Jim’s report and to tell Han that he should henceforth avoid the two mechanics when they were on headquarters property. In fact, Warren told him to start taking his breaks and eating his lunch in the office facilities instead of using the plant lunchroom and break room.

After a thoughtful, slow head shaking, Han argued that this wasn’t a workable solution. Whether the mechanics are on-site or not, there are still trucks and deliveries that need to be tracked and recorded. Besides, he asked, how would he know that they’re around? The office building lunchroom was far enough away from Han’s office that he wouldn’t have but about 10 minutes to wolf down his lunch. Warren told Han to deal with it -- just avoid the mechanics and keep his head down. Warren then left Han’s office and headed to the parking lot.

Han’s subsequent discrimination claim argued that this is an unacceptable solution. None of the proposed resolution follows Acme’s anti-harassment policy. There weren’t any notes made, the incidents aren’t documented anywhere, and none of the events have ever been reported to upper management. Therefore, Han argued, Acme is liable under the provisions of the 1964 Civil Rights Act.

How could this situation have been avoided? What elements would constitute an objectively adequate solution? How should a company respond to a seemingly ungrateful employee? Did Warren and Jim act responsibly or did they make key mistakes? What possible remedies or consequences are available to Han and Acme? What should be the fate of the mechanics?

An academician says:

This seems to be one of those cases in which playful teasing went a bit too far. One person’s idea of teasing is often another person’s idea of harassment, and where one draws the line isn’t always clear. Assuming Han’s version of the events is true, it seems clear the line was crossed.

Cases such as this are best handled with a quick and strong response by management, and plenty of documentation of what happened, as well as the action the company took. While Warren should be lauded for his action, the lack of documentation is problematic. And I have questions about the completeness of the investigation. If Han was tight-lipped, where did Warren get his initial information?

Someone knows something.

And having Han avoid contact with the mechanics, or having him avoid the lunchroom, isn’t a good solution. He’s the victim and having him hide from the mechanics seems like Acme is putting restrictions on the wrong person.

I’d have pushed for a more formal investigation by HR. This investigation was too informal and not documented. It may be a “he said -- they said” case, but so were the investigation and actions. Acme needs a clear and fair process for investigating cases such as this not only to ensure that justice is done, but also to keep from being the target of court action.

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

An attorney says:

Just for starters, Warren and Jim need to enroll in a good class to learn how to handle harassment complaints. Warren succeeded in eliciting Han’s complaint from him, but he completely forgot about asking if there were any witnesses. In most cases, the accused harasser denies engaging in the complained-about conduct. The only way to “prove” the complaining employee’s version of the events is through witnesses.

Jim’s first mistake was not following up with the two mechanics with a written reminder that Acme has a harassment policy, that Acme has zero tolerance for acts of national origin harassment and that, if they were found to have violated the policy, they would be subject to discipline, up to and including discharge. Just for good measure, Jim could have required them to attend harassment training.

Warren then complicated matters by getting the solution to the problem absolutely backward. He should have told the two mechanics to avoid Han at all costs and to change to a different lunchroom. The employee who complains about harassment should never be disadvantaged because of the harassment complaint. Taking action against the complaining employee, such as transferring the person, often is construed as an act of retaliation, an entirely separate violation of the law from allowing a hostile work environment.

All that being said, if Acme is like most employers, its harassment policy is contained in the employee handbook, which is replete with disclaimers, carefully crafted by the company’s lawyers, to prevent exactly what Han is trying to do -- sue the company because it failed to adhere to its own policy. So Acme’s failure to make notes or report the problem to upper management are not likely to get Han anywhere.

Lastly, the conduct Han complains about -- sending him a photo of a hammer and sickle, calling him a dirty commie rat and goosing him with a broom handle -- may not be enough legally to create a hostile work environment, particularly if these events occurred over a long time span. But whether or not the conduct rises to the level of a hostile work environment, Acme is losing productive time and money by defending the claim, and it ought to train its supervisors and employees properly to avoid harassment in the workplace.

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

A corporate consultant says:

So what happened here? Warren was doing so well and then he dropped the ball right at the goal line. Upon hearing the rumors, he immediately took the initiative and spoke with Han, then informed the mechanics' supervisor of the situation, and went back to Han to keep him in the loop. So close to perfect execution -- and then Warren seems to have gone brain dead.

There’s no way that Warren could possibly be proud of the way he handled this; he most certainly knew better. His was the kind of advice one gives to children on the playground. In our litigious environment, even without an HR background, both Warren and Jim should have known to turn this matter over to HR.

I read nothing that led me to conclude that Han was ungrateful. Warren did nothing to deserve Han's gratitude. Why shouldn't Han file a discrimination complaint?

Avoiding this situation would have required notifying HR immediately. Doing so would likely have ensured that Han's solicited complaint was documented, along with the conversations with Jim, the mechanics, and anyone else involved. Involving HR also likely would have ensured that Warren wouldn’t have given Han that "avoidance" speech. Instead, HR would have briefed both Han and Warren on appropriate next steps.

Even though there's no proof that these two mechanics were abusive, several appropriate next steps could include: provide a witness to any further abuses by moving someone into Han's office who could buddy up with him whenever he left his office; require all mechanics to attend a class on diversity/sensitivity; change the shifts the errant mechanics work; not allow the two mechanics on-site at Han's location; install video cameras in the lunch room; a briefing for all employees by an attorney specializing in discrimination suits, who could explain the personal liability that may accrue to abusers; and interview others who work closely with the two mechanics to determine whether they have a reputation for speaking ill of Han or others.

Warren knew better. He just got sloppy at the end. Had he thought about the quality of advice he was preparing to give Han before he actually delivered it, he'd have realized the need to reach out to HR.

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

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