Question #61254 - Good Tenants

[Marduk]

Now lets say you were fired for not performing to expectations. Would you feel such a firing to be justified? Certainly not, right?

Now if you were a minority (or your boss was male) and he or she occasionally made jokes about your race, would it be hard to conclude (even if erroniously) that you were discriminated against?

Now let's say they knew you were performing a substandard job, knew they had made those remarks, and now they say "We can't fire her. She's a minority and will cry discrimination." The anti-discrimination laws may seem silly to someone who simply sees this much information, and say "well, it is silly. If someone isn't performing well, they should be fired regardless of their ethnicity." What I'm trying to point out is that it is rarely as black (see what I did there?) and white as that.

[vorpal blade]

is this age discrimination? i believe it was a factor in his firing.

Age discrimination is actually legal.

If you are over 40 it is illegal. http://www.eeoc.gov/laws/types/age.cfm

[Waldorf and Sauron]

Oh, my bad: It's illegal to discriminate against the older, legal to discriminate against the younger. I had remembered only half the story.

[vorpal blade]

The same is true in the employment sector. In order to avoid the stigma of looking discriminatory, and to avoid the costly court battles, employers will give preference to someone in the protected class. I've seen that happen time after time.

This happened at my internship in the fall, and it drove me absolutely crazy. Half of the people working there should've been fired a long time ago for disciplinary issues, so I brought it up with the supervisor, and she told me very explicitly that she was afraid of discrimination lawsuits because they had a lot of minorities and vulnerable people on staff. How pathetic is that? What kind of system are we running here?

those people take anti-discrimination laws too far. they're scared. but if you take the time to properly document a person's professional deficiencies before you fire them, they have almost NO grounds for suits of that type. my roommate is completely meticulous in her job as HR and always leaves a long paper trail. her company hasn't even had to pay unemployment because she is so detailed in her notes, emails, and write ups. if you're HR person is any good, you'll have no problems proving there was no discrimination, thus placing the burden on the accuser.

yeah thebigcheese's manager has questionable ethics that would get them fired at my old place of work.

i agree with marduk's whole statement. only an idiot manager takes anti-discrimination to extreme measures, like keeping on people who aren't performing well. that is a person with no real understanding of law, HR ethical practices, or common sense.

I think part of the answer to whether a manager is an idiot for keeping on people who aren't performing well, or whether it would help to more carefully document deficiencies in order to avoid the hassle of a lawsuit lies in this response:

Re: Education in America
teachers unions are good and bad. when my roommate was (unjustly) accused of misconduct with a student, the union stood behind him even though he wasn't a member (and still isn't). when another friend of mine was accused of hating gay students, they helped her as well. they negotiate our stipends for extra activities, and go to bat for us when it comes to insurance and funding. but they are insanely focused to EVERYONE keeping their jobs, when some teachers do need to get the boot.

But perhaps school managers and school board officials are idiots.

[vorpal blade]

Oh, my bad: It's illegal to discriminate against the older, legal to discriminate against the younger. I had remembered only half the story.

Thank you, Sauron. Right. So just remember everyone, it is legal for me to give you guys a hard time about how young you are, but you can't harass me frequently or so severely that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). So, let's give a little more respect for those of us over 40! (I'm just joking).

[Marduk]

Ha, Vorpal, I love how you added the smiley face AND the "I'm just joking." Don't worry, we'd never make fun of you for your age. Someone as old and frail as you might not be able to handle it.

Back on point, there's a difference between being accused, falsely, of misconduct of a legal nature, and simply being inept or incompetent at your job. I think we can all agree that someone who has been falsely accused deserves to keep their job. And most of us can agree that someone who simply is unable to perform the functions of their job should probably find another job more suited for them, whether at their realization or a firing by their employer.

[Imogen]

vorpal, school board officials are idiots. at least, ours are.

[Dragon Lady]

My dad was the school board president for as long as I can remember up until the day I graduated. I think he did an excellent job (as well as the ones that succeeded him). Pretty sure that one is district-based, not a generality.

[vorpal blade]

Someone as old and frail as you might not be able to handle it.

Your illegal age discrimination harassment is duly noted. I’m going to have to go through the steps, document my observations, and provide a proper paper trail to prove your deficiencies and that you should be fired. Consider this to be your first official warning and opportunity, given out of fairness so that you can correct your mistakes.

Back on point, there's a difference between being accused, falsely, of misconduct of a legal nature, and simply being inept or incompetent at your job. I think we can all agree that someone who has been falsely accused deserves to keep their job. And most of us can agree that someone who simply is unable to perform the functions of their job should probably find another job more suited for them, whether at their realization or a firing by their employer.

You have missed my point. The point is that school districts choose not to fire some teachers who, it is well known, unquestionably need to be “given the boot.” And why are these school managers keeping on people who aren’t performing well? Is it because the mangers are idiots? Is it because the managers lack common sense, have no real understanding of the law or HR ethical practices, don’t know how to do their jobs, or don’t know how to go through the steps to get proper documentation to justify the teacher’s deficiencies? It would be arrogant to think so. As Imogen aptly tells us the reason is that teachers’ unions “are insanely focused to EVERYONE keeping their jobs, when some teachers do need to get the boot.” It is because of the fear of the power of the teachers’ unions to use union dues to bankrupt a school district fighting legal battles. You think insurance is going to pay for the school districts to fight all these battles, without the insurance rates going through the roof? Not a chance.

I would like to think that the teachers’ union is a strawman created by someone to scare small children, but teachers’ unions are very real and powerful. And because the teachers’ unions are “insanely focused” they aren’t going to listen to reason, documentation, or any of the facts that a sane organization would do. Their mission is to protect the people who support them, the teachers.

And there are other unions and organizations such as the American Civil Liberties Union (ACLU) and the NAACP Legal Defense Fund, who are just as insanely focused on protecting those who support them. They will use any weapon at their disposal, including the anti-discrimination laws, to help those who support them keep their jobs, regardless of documentation of deficiencies. They know that they can make life miserable, if not intolerable, for managers who oppose them. This is not an intellectual argument about the way things ought to work in a perfect world, or what sounds reasonable to you, or what holds water according to your understanding of the principles involved. It is the fact, and the way things are.

So, I attribute your lack of understanding of this issue to your youth and inexperience. This is your second official warning.

[thebigcheese]

Back in high school, they tried to fire my track/cross country coach, who was a black woman. I'm not sure of all the reasons why they wanted to fire her (she definitely wasn't an awesome coach), but she sued and kept her job. So they hired another coach to take over the track team, and they limited her responsibilities to coaching cross country only.

Anyway, the new coach was a ridiculous improvement. We won district, placed at regionals, and sent lots of girls to state that year. (It wasn't much of a surprise though, his previous job was coaching at TCU.)

[Marduk]

I disagree, Vorpal, that my representation is merely some fantasy land. I think there are cases where legal threats have caused organizations to take actions they otherwise would not have. But I do not believe that to be in a majority of cases; rather, I think it is a very small minority that is disproportionately publicized. We have to be very careful not to attribute a few pieces of what we see, assume parts of a larger whole we do not see, and generalize it to a majority of other cases we do not even know of.

The fact is, people are fired all the time. Most of them don't file lawsuits, even those who are wrongly terminated. Minorities don't file lawsuits in any greater number than any other segment of the population. People are hired, fired, and continue on with their lives mostly unfettered. There are cases where legal action is involved, but it is the exception, not the rule. And of those cases, where the hirings and firings have been well documented, costly fights are again the exception and not the rule.

Inept and incompetent people cost their organizations money. That is the rule, not the exception.

Also, I take umbrage at your warnings; my playful jibes were not of a serious manner, nor did they create a hostile environment, so I am well within the stipulations of the law.

[vorpal blade]

Also, I take umbrage at your warnings; my playful jibes were not of a serious manner, nor did they create a hostile environment, so I am well within the stipulations of the law.

Honestly, from what I've seen, claiming that you take umbrage is an argument (in the Marduk sense) that really doesn't hold water, and is a straw man for another issue entirely. "Umbrage" means "a feeling of anger caused by being offended," and we know that you are never offended, because you said so.

You, as the perpetrator, are not the one to decide if a hostile environment has been created or not. Generally speaking it is the victim who decides. People where I work are required to take training every year in such harassment issues. The harasser might not have a clue, but if the one harassed objects then the perpetrator is put on notice, and it doesn’t matter whether he agrees that a hostile environment has been created, he must desist or be in violation of the law. While one isolated incident, which could reasonably be construed as innocent, would probably not be upheld in court as illegal, it is appropriate to issue a warning that if it continues then that instance will be evidence of an illegal activity.

As far as the rest of your discussion goes, I take it as your opinion, based on your observations and experience, but you don’t give any evidence or proof of your assertions. Which is okay, we are glad to hear what you think. Others, with a great deal more experience, have a different point of view.

[Craig Jessop]

This seems an appropriate place to post this... on a whim I put my contract on Craig's List (go figure), and somebody totally came and bought it today. Now I'm in the market for a decently priced, private room. Anybody got any leads?

[Cognoscente]

This seems an appropriate place to post this... on a whim I put my contract on Craig's List (go figure), and somebody totally came and bought it today. Now I'm in the market for a decently priced, private room. Anybody got any leads?

I have a lead, if you're interested, and it would help me a ton if you signed. PM me for details.

[Marduk]

Careful Vorpal, if you keep pointing out your experience it might be considered age discrimination, against yourself.

Also, wanted to point out that the legal precedent here is not actually whether the person feels harassed. It is whether a "reasonable person" in that same situation would feel harassed. This calls on discretion of any sort of arbitrating body, be it a court or otherwise, which means it usually weeds out outliers in feeling, but can also be somewhat subjective.

Speaking of arbitrating, many companies now have arbitration clauses built into their hiring process paperwork and errata which generally prevents someone from seeking legal resolutions to any sort of employment dispute. Just another thing to think about, which someone with such vast experience as yourself obviously already knew.

[vorpal blade]

Also, wanted to point out that the legal precedent here is not actually whether the person feels harassed. It is whether a "reasonable person" in that same situation would feel harassed. This calls on discretion of any sort of arbitrating body, be it a court or otherwise, which means it usually weeds out outliers in feeling, but can also be somewhat subjective.

So, ah, seriously now.

True, the legal standard is “Would a reasonable person consider this behavior to be offensive?” (For a sexual harassment case the law considers this standard from the point of view of a person of the same sex as the target.) That makes sense, given that we wouldn’t want to be ruled by what some overly sensitive person thought offensive, or what someone with ulterior motives might merely claim to be offensive. As you know, this standard is not written into the law, it is just the way the issue may be expected to be argued in a court of law, if it goes that far. Since the courts are interpreting the meaning of the vague term “harassment,” the understanding of what constitutes infringement of the law is constantly evolving.

There are just a few things that I would like to say about that. The legal standard may not be the standard your employer uses to protect himself. There is ambiguity in the law. What can we expect the courts to decide is the opinion of a “reasonable person?” As you say, that can be subjective. It leaves a great deal of uncertainty in the minds of people in the workplace. As a result, in order to mitigate against the risk of a legal battle, companies will operate in a conservative manner. They will train their supervisors and employees to use more caution than might be strictly needed, and punish them if they don’t.

My employer defines harassment as:

Harassment is any unwelcome verbal or physical conduct based on protected bases (race, color, religion, sex, national origin, age (40 and over), disability and retaliation), as well as sexual orientation, when:

The conduct culminates in a tangible employment action, or

The conduct was sufficiently severe or pervasive to create a hostile work environment.

It doesn’t use the term “reasonable person” in the definition. Notice also that the word “unwelcome” is used. Who decides whether the verbal or physical conduct is “unwelcome?” It is the victim.

The way “unwelcome conduct” is defined for my organization for sexual harassment is:

Unwelcome conduct is where the employee did not solicit or invite the conduct and regarded it as undesirable. Examples:
Sexual advances/pressures for dates
Slurs, comments, jokes, innuendos
Deliberate bumping/touching, threats, actual or attempted assault or rape
Inappropriate gestures, pictures, graffiti, slang expressions

Some of this may be obvious; but slurs, comments, jokes, and inappropriate pictures might be something easy to overlook. The courts have upheld as sexual harassment: jokes, derogatory statements about men or women, and pictures or calendars that have long been considered normal in the workplace. My employer states that:

A supervisor can be held personally liable about sexually harassing events in the workplace if he/she knew (i.e., received a sexual harassment complaint), or should have known (i.e., rumors, saw sexual visuals, heard sexual comments, derogatory statements about women/men) and failed to take action to stop them.

Do you think a reasonable person would find derogatory statements about men or women to be objectionable? I can see that, from a certain point of view, but objectionable to the point of firing that individual or levying severe criminal penalties and fines?

And, unfortunately, a victim might well give the impression that the conduct was welcome, but later claim that is was unwelcome. Justifiable excuses for not letting the harasser know his action were unwelcome include:

 Fear they will not have the support of the management
 Fear they will be labeled as a non-team player
 Fear they will be viewed as a trouble-maker
 Feel it’s their fault
 Embarrassment
 Peer pressure
 Prefer to not get involved
 Not worth the risk (promotions, awards, career)
 Fear of reprisal

Going back to the definition, not only must the verbal or physical conduct be “unwelcome” (as determined by the victim), involve a protected class, but either result in a tangible employment action or the conduct must be sufficiently severe or pervasive to create a hostile work environment. I think a tangible employment action is sufficient clear without going into the details. How is a “hostile work environment” defined? As follows:

Hostile Work Environment
 Where unwelcome conduct of a sexual nature creates an uncomfortable work environment
 May be either (1) unwelcome/inappropriate affection, or (2) hostility, insults, and threats
 Legal standards: “severe or pervasive” and/or interferes with performance of duties
 Typically requires a pattern of inappropriate sexual behavior (unless it includes physical contact)
Note: Even if unwelcome conduct falls short of a legal violation, employers must address and correct inappropriate behavior at its earliest stages
 The conduct must be severe or pervasive. It does not involve an incident of an isolated or trivial nature or general incivility, unprofessional conduct, or rudeness in the workplace.

Some of this makes it appear that the conduct is much more egregious than mere rudeness. But I know people who let very trivial things interfere with their performance of their duties. Some things make you concerned that you must really be careful. Consider this:

Sexual Harassment may be:
Offensive jokes and language, insults, sexual propositions, threats, and comments about a person’s body or appearance
Staring at a person’s body, offensive gestures, and circulating degrading or offensive letters, pictures, e-mail, or cartoons

I don’t know about you, but I frequently receive e-mails and cartoons that some “reasonable person” somewhere would find offensive. Where do you draw the line?

And what is the consequence of repeatedly offending some “reasonable person?”

The Consequences of Harassment
 Agency may be held liable
 Potential for personal liability
 Harasser may face:
 -- Civil judgment for damages
 -- Employee discipline (up to and including suspension, demotion, or removal)
 -- Jeopardy to security clearance
 -- Administrative sanctions
 -- Criminal liability (Threats/physical contact may constitute assault)
 Ultimately, the consequences can be Career-ending

What is the bottom line, where you get in trouble with your employer if not the law?

Prevention of Harassment
 Be sensitive to how your actions may appear! Any action of a potentially objectionable nature could be considered as, or could become, prohibited harassment
 Even the perception or appearance of impropriety could lead to harassment complaints

Emphasis in original 2010 training materials. You have to be really careful not to say or do something that someone might consider offensive in order to stay safely within the law, or, worse yet, not be in trouble with your employer.

[wired]

http://blogs.wsj.com/law/2011/01/12/goo ... ms-way-up/

Thought it might be interesting to people here.

[thebigcheese]

That is interesting. Especially this line:

He noted that the percentage of charges determined to have a reasonable cause has hovered around 5% for the past several years.

Lots of cases filed, but very few come to fruition.

[Marduk]

Interesting to note about that article:

It said that claims of retaliation exceeded those of racial bias, and that retaliation claims were more likely to be successful and more lucrative than claims of racial bias. I guess juries hold the view that also seems to dominate this thread.