The employees at Acme viewed the diligent efforts they expended concerning the care and feeding of a healthy, profitable manufacturing operation as the key to preventing the corporate fathers from annihilating their livelihoods with a knee-jerk outsourcing binge.
Anne Corziway was one of four technical assistants in the plant engineering department at the Acme facility down by the riverside. The technical assistant’s primary function was to provide support for new project work and to perform research and diagnostics on operating systems. This flexible group, all direct hires, was a resource that any of the talented engineering types who kept the plant humming along could call on to help expedite the work at hand.
Because of the weakened economy, Acme routinely brought plant engineers onboard as independent contractors. This policy maintained maximum flexibility for Acme and helped it avoid the economic drain of having to pay for benefits. Many of the engineering contractors already had labored on Acme’s behalf more or less continuously for several years. As a result, this engineering team was highly efficient because of its familiarity with Acme’s sometimes quirky way of doing things on the plant floor.
Archie Pellago was one of those plant engineers. A gregarious sort, he considered everyone with whom he came in contact to be a friend. Effusive with his praise for even the smallest success a coworker accomplished, a constant smile on his rugged countenance, Archie was the consummate politician in an uncertain corporate environment.
Archie always came to Anne first when he needed assistance on one of his assignments. Over the years, Anne’s feelings toward Archie devolved into something less than cordial. She thought he was a smarmy character, and she always felt uncomfortable when in his presence. She was amazed that Archie was completely oblivious to the subtle behavioral cues that indicated she and others really didn’t like him.
One day, when Anne was on the plant floor taking care of business, Archie wandered over to her and made an overt pass, asking her for a date to see a movie and maybe later do something “lewd.” Anne cut that conversation short with a curt “Go to hell.” She looked around and realized they were hidden from view of anyone else on the floor. She bolted out into the open and went to Eaton Grubbs, the plant manager, to complain about Archie’s attempt to ask for a date. She considered the idea of spending leisure time with him to be offensive on several levels.
Eaton listened carefully and thanked her for coming forward to report this. He also told Anne that she wasn’t the only woman who had a problem with Archie. Two engineering department secretaries and one production worker also complained about Archie coming on to them and bandying his brand of off-color humor and sexual innuendo.
Eaton arranged for Acme’s HR department to conduct an internal investigation into the complaints. The HR manager assured the four women that the details of their complaints would remain confidential. In fact, the investigation report was leaked to Archie, who tried to threaten the four “victims” and pressure them to retract their complaints.
Later, Acme made no effort to provide any defense for the four when Archie’s lawyer interviewed them. With the word out on the grapevine, the four found life at Acme to be untenable. They resigned within a few days of each other and filed a lawsuit against Archie and Acme charging them with sexual harassment, retaliation and other complaints.
How could this situation have been avoided? Is it detrimental to use independent contractors as your main source of technical talent? Should new contractors and new hires be subjected to personality testing? Would it help if Acme allowed the rest of the department to interview potential coworkers and include these opinions into the hiring decision? Is it unreasonable to expect a woman to simply turn down the date offer and move on with her life?
An attorney says:
The most inexplicable part of this story is the comment that “Acme made no effort to provide any defense for the four when Archie’s lawyer interviewed them.” Why was Archie’s lawyer interviewing them?
But let me start at the beginning. The law provides protection for employees who complain about harassment or discrimination. Without this legal protection many employees, understandably, would be loathe to complain. By not keeping the women’s complaints and information about their complaints confidential, Acme permitted the grapevine to grab hold of the story which, not surprisingly, created an untenable atmosphere for them. Even worse, Archie threatened them. That should have resulted in Archie’s immediate termination.
Let’s get back to Archie’s lawyer. This is a free country, and every person has a choice whether or not to speak to another person. Almost the sole exception to this truism is that a person has to appear and testify in response to a lawfully issued and served subpoena. Generally speaking, however, there can be no subpoena without a law suit. As a result, it appears that Archie’s lawyer said he or she wanted to speak to the women and no one at Acme told the employees they had no obligation whatsoever to speak with Archie’s counsel.
Employers often ask whether they have an obligation to honor an employee’s request that his lawyer be present at a meeting, investigation or disciplinary interview. The simple answer to that question is no. When an employer is dealing with a current employee, it has no obligation, absent an active law suit, to deal with anyone other than the employee with respect to his employment issues.
Acme might have avoided the entire problem by telling Archie at the time it interviewed him as part of its investigation that he needed to keep the matter confidential and he was not to engage in any act of retaliation against the women who complained.
Julie Badel, partner
Epstein Becker & Green, P.C.
A plant engineer says:
This situation could have been avoided if Acme would have responded properly to the first three complaints about Archie. Had Acme investigated those complaints properly, it’s possible that Archie would have been counseled and would have changed his behavior or would have no longer been working at Acme. If one person complains about the advances of another, you might dismiss the complaint as someone having a bad day. When three people complain, shame on Acme for not responding!
On the hiring and screening of contractors, I believe it’s best to have your main source of technical talent in-house. There’s no substitute for experience with the same machines and processes day after day. After a while, you begin to know the normal and the abnormal sounds and problems with each machine or process. When necessary for larger projects, bring in the outside help as needed.
Personality testing and prior interviews by others in the department shouldn’t be necessary. An outside contractor should know that if one can’t get along well with the company’s associates, then the contractor, not the associate, will be gone and another contractor hired.
It’s reasonable to expect a person to turn down a request for a date and move on. If this had been all that happened, the response would be completely different. The fact that Archie was bothering three other women indicates that he was someone who shouldn’t be in the plant at all. If Archie had only asked Anne for a date and she said no and he dropped the issue, all would be well at Acme.
Jeffrey L. Strasser
An academician says:
The first time that Archie made an inappropriate statement, HR should have told him in no uncertain terms that his conduct was inappropriate and that conduct such as his would not be tolerated. The second time he displayed that conduct, he should have been terminated. Acme doesn’t have to explain to him or hold a hearing or whatever. Goodbye, Archie. Acme has no obligation to independent contractors and can get rid of them at anytime. That’s the attraction of hiring independent contractors — they’re present when the company needs them and gone when the company doesn’t need or want them. And, the independent contractors are aware of that.
One of the problems with independent contractors is that they might not need to go through the selection process that a regular hire would. That’s particularly true if you’re hiring from an agency or outsourcing a function — you get what’s sent to you. So, somehow the company needs to be sure that a contractor has the skills (technical and personal) to get the job done. I suspect most companies just put the person on the job, do a quick evaluation and keep those they like, quickly getting rid of those they don’t like. Would it help to have a better selection process, either through HR or team selection? Probably, but most companies don’t want to waste the time and money on that. It’s easier (and cheaper) to try the person out and decide quickly if they fit in.
Is it reasonable for a person to expect to turn down a date offer and get on with her life? Yes, it is, and it happens often. But this was more than a date — it included an invitation to engage in lewd behavior. There’s always a fine line between an innocent invitation to have, say a cup of coffee, and an invitation that classifies as sexual harassment. Archie’s behavior is clearly in the latter category, and Acme should have terminated him quickly.
Professor Homer H. Johnson, Ph.D.
Loyola University Chicago