Harassment at home

In this edition of In the Trenches, Acme wonders how to address harassment when it takes place during non-work hours.

During her 10 years at Acme, Becky Braveheart worked her way up from a receiving dock clerk to traffic manager of the company’s main facility. During a phone call with Harry Handsfree, the traffic manager at another Acme site, Becky, a lesbian, heard a man over the speaker phone in the background asking, “How’s that broad doing?” The man also made some explicit remarks about Becky’s lack of interest in the opposite gender, which prompted Harry to hang up the phone quickly. But Becky called back to find out who made the comment. It was Barry Boorish, the shipping and receiving manager at Harry’s site, whom she had never met or even spoken to before. Becky and Harry met with Mike Midman, their division supervisor, to discuss Barry’s comment. During their meeting, Harry told Mike of other lewd and offensive remarks that Barry had made regarding Becky and her sexual orientation, as well as derogatory comments about another female traffic manager.

Mike placed Barry on administrative leave pending an investigation, pursuant to the company’s zero-tolerance harassment policy, and then demoted him from his managerial position. Several of Barry’s coworkers said they overheard Barry blame Becky for his demotion and threaten to retaliate against her. Barry exercised his seniority right to transfer to another position — a job working under Becky’s supervision.

How could this situation have been prevented?

Tom Nit and Jerry Witt, two Acme administrators, contacted Becky to inform her that Barry had been demoted, that he had not reacted well to the demotion, and that he would be transferring to her facility. Becky told Tom and Jerry that she was very apprehensive about supervising Barry and that she was frightened about doing so. Given Barry’s comments threatening retaliation, and, out of concern for her safety, Tom and Jerry told Becky to pack her belongings, leave the worksite, and not return to work. They placed her on paid administrative leave until they could “figure out where else to send” her.

The next morning, a man pounded on the front door of Becky’s home for almost an hour, yelling, “You cost me my job and I’m going to get you. Come out of there.” Becky didn’t call the police because the phone was right near the front door, and she was too afraid to go near it. Right after he left, though, she packed her bags, left town, and reported the incident to Tom and Jerry. Acme paid for Becky to stay at a hotel for eight days, but it did not investigate the incident or ask Barry if he was involved.

Tom and Jerry offered Becky a transfer out of state so that she wouldn’t have to supervise Barry. When she refused, they told her to meet with Heda Shrink, a psychiatrist, who diagnosed Becky with adjustment disorder, anxiety, occupational harassment, clinical depression, and increased blood pressure from the stress of the situation, and she was placed on paid medical leave for four months.

During her extended absence, Becky received anonymous, harassing phone calls almost daily from a man who kept calling her names and saying, “I’m not finished with you. I haven’t forgotten what you’ve done. Watch your back. I’m going to get you.” Although Becky changed her phone number three times, the calls persisted. She reported the calls to Mike and to Acme security, but the caller could not be identified because the calls were made from a private, blocked number, so they took no further action.

After she was cleared to return to work, Becky accepted a transfer back to her old job at the receiving dock at another Acme site — at a $35,000 a year pay cut — just to avoid Barry. Shortly after starting at the job, she received yet another threatening phone call. “Did you hear about Harry? Watch your back.” She found out later that Harry was attacked while out on the receiving dock; he was hit on the head from behind and was hospitalized for several days with a severe concussion. Becky reported this call to Mike and to Acme security, as well, but there was no follow-up about the incident. At this point, Becky initiated legal action.

Soon thereafter, a frazzled Becky began having car trouble. Fearful for her safety while driving an unreliable vehicle in light of the threats and the attack on Harry, she asked for permission to use the Acme van while her car was being repaired. Acme routinely let employees use the van when they had car trouble or had work-related errands. Two site supervisors approved her request. Little did she know, however, that Jerry had begun an investigation into her use of the company van. Then Becky was hauled in to a meeting with Tom to talk about her illness-related absences. When she explained that she had a doctor’s excuse, Tom said that Acme did not accept doctor-excused absences. The very next day, Becky was questioned extensively again, this time by Jerry, about her van usage. She was suspended without pay for improper use of the company vehicle and then fired. Becky added a retaliation claim to her pending lawsuit.

A labor and employment analyst’s response:

Barry’s single, isolated comment to Becky was crass and offensive, but not enough, standing alone, to create a hostile work environment or to land Acme in court. But the escalating threat to Becky and the repercussions that she suffered afterward, both personal and professional, put the company at risk of liability.

Mike’s initial response to Barry’s boorishness was appropriate; he investigated the incident and, when he learned that Barry’s offensive conduct was not an isolated event, Mike quickly decided that Barry wasn’t management material and demoted him. From that point on, though, Acme officials dropped the ball. Willfully allowing Barry to transfer to Becky’s location displayed a reckless disregard for her well-being and compounded the single act into a hostile environment.

Tom and Jerry understood the gravity of the situation enough to advise Becky to get out of town, but not enough to investigate the threats against her. Becky should have called the police about the assailant lurking outside her door, but, because she figured it was Barry, she notified the company instead. At that point, Acme still failed to investigate. Management essentially shrugged off the harassing phone calls, as well, and apparently did nothing to investigate the attack on Harry, either.

Because Acme failed to effectively respond to Becky’s concerns when she shared her trepidation about the situation, Becky suffered psychological distress and had to seek counseling and take extended leave. Ultimately, she had to resign her managerial position to avoid being further victimized, resulting in her constructive demotion, reduction in pay, and forced relocation. Finally, Tom and Jerry exacerbated the situation by retaliating against her. No doubt the Barry-Becky situation was creating a distraction, but they incorrectly treated Becky as the problem. In doing so, they made Acme liable on yet another front.

Apparently Acme assumed that because the threats against Becky occurred outside the workplace, it wasn’t the company’s problem. But the off-site drama that unfolded here, assuming the perpetrator was in fact Barry, grew out of a situation that arose at work, and so it arguably occurred within the scope of her employment. Or perhaps Acme was not concerned because Barry was not Becky’s supervisor. However, an employer can be liable for workplace harassment by coworkers, not just supervisors, if it had reason to know of the harassment and failed to take prompt and effective remedial action. Such was the case here.

Lisa Milam-Perez, J.D., Labor and Employment Analyst
Wolters Kluwer Law and Business, (773) 866-3908, lisa.milam-perez@wolterskluwer.com

Reader responses:

HR definitely dropped the ball when they allowed an employee to transfer into a position where they were in direct contact with another employee that they were having 'personality conflicts' with.  Instead of rubber-stamping the transfer they should have checked the files for potential problems, and seeing the previous investigation, HR should have 'Dock Blocked' Barry's transfer (If you'll pardon the phrase; for some reason Acme seems to attract puns even faster than it attracts HR problems).  When Barry (and the union rep) came up to complain about the blocked transfer, it would be pointed out that it would be 'less than wise' to put two employees together when there is recent history of friction.  Such a transfer would likely hurt productivity as the emotional wounds are still 'fresh,' and bringing the two together would pour metaphorical gasoline onto a not-quite-dead campfire, causing a flare-up of 'drama' that would impair not only the productivity of the pair involved, but also hurt productivity of 'innocent bystanders' in the area.

Tom and Jerry also focused on the wrong person when they discovered the conflict.  Instead of stopping the 'cat' from walking in, they instead told the 'mouse' to run, and then later attacked her themselves because she followed their advice.

Andrew Dreasler

I am not sure how much longer Acme is going to be in business after this fiasco. To begin with, I think the original reaction to Barry's idiotic comments was a little too severe; the first reaction should have been supervisory counseling and some sensitivity training for Barry. My reasoning for this is that he was not directing his comments directly to Becky, but merely being true to his name: boorish. It did not sound threatening or harassing as such. However, if it then continued or escalated in any way, my reaction would not be to demote Barry; it would be to fire him.

Everything that happened after the demotion in the story is really too hard to answer separately. Suffice it to say that there is enough blame to go around for everyone, even Becky. By far the worst mistake by Tom & Jerry, Mike, and Becky was not getting the police involved at an early stage. Once a situation like this gets into threats of retaliation, "anonymous" stalking, and even physical harm, the police must be involved. Workplace violence is not just someone with a gun.

Of course, the later retaliation against Becky by Acme supervisors, along with their negligence to provide her with a safe workplace, opens them up to one excellent lawsuit by Becky. Once again it seems that the most secure job around seems to be with Acme's legal staff.

Phil Grimes