Learning from another Employer’s Mistakes

Posted on March 27, 2014 in Compliance, Consulting

On May 13, 2014, I will be presenting a lunch and learn – co-hosted with my friends at USI Insurance Services.  (See right column for invitation and RSVP.)  My topic for the presentation is: Handling Employee Complaints.  This topic was inspired by a recent case out of the Fifth Circuit Court of Appeal, EEOC v. Boh Brothers Construction, which tells the story of an employer that did everything wrong when confronted with an employee complaint of sexual harassment.   I want to share a little about that case and encourage you to attend the May 13 lunch and learn.

The Boh Brothers case involved a claim by a male iron worker (Woods) that his supervisor (Wolfe) verbally and physically harassed him because Woods did not conform to Wolfe’s view of how a man should act.  The details of the harassment are crude and vulgar.  Wolfe directed most every derogatory term for homosexuals at Woods.  (Incidentally, Woods is not gay.)  Worse, he exposed himself and made physically inappropriate gestures.  He humiliated Woods often and did so in front of others.

Sadly, there is nothing unusual about the presence of extremely vulgar persons in the workplace.  But what makes this story rather shocking and different is the sheer stupidity of the company’s management… at multiple levels.  A few of Boh Brother’s mistakes are highlighted as examples of what not to do when handling an employee complaint of harassment:  

Ignore the lawyers

Woods reported the allegations to the company’s General Superintendent who neglected to advise the company’s in-house lawyer.   His reasoning for keeping the complaint from lawyers is not explicitly cited in the published opinion, but the General Superintendent’s inaction explains his ulterior motives.  He didn’t care to do anything about the complaint.

No written policy or training

In his defense, the General Superintendent had no guidance from the company’s lawyer.  The in-house lawyer at Boh Brothers admitted at trial that while it had a general EEO policy the company had no specific written guidance on sexual harassment.  In his own words, the lawyer admitted that the company “did not put out a lot of definitions about anything.” The company provided about five minutes of training a year to the General Superintendent on sexual harassment.  

Grossly inadequate investigation

Given those facts, it is not surprising that the General Superintendent conducted a pathetic investigation. He met with two witnesses (Wolfe and a foreman) for about 10 minutes.  He took no notes and did not otherwise document any of his efforts to investigate.  The best that could be said of this person’s investigation is that he was obviously honest at trial; a liar clearly would have come up with a better story.

Focused on the wrong issue

Rather than confront Wood’s complaint about Wolfe, the General Superintendent hired a private investigator to determine if Wolfe had stolen from the company — a separate allegation Woods raised.

No discipline of Wolfe

Without explanation, the company never disciplined Wolfe.  Not in any respect.  Rather shocking given the extremely offensive behavior.  The company did send Wolfe for some sexual harassment training after the fact. 

Victim lost his Job

If all these bad facts were not enough, the company “laid-off” Woods after he filed a Charge of Discrimination with the EEOC.

I assure you that on May 13, 2014, we will pick through this abomination of an investigation and learn together how to best handle employee complaints.