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Prevention of EEOC Complaints is the Best Way To Defend Against EEOC Complaints

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A local Human Resources Manager, who worked for a large defense contractor in Southern California relayed this story to me about an employee who filed an EEOC Complaint against a supervisor. The employee had worked for the company for over 25 years. His work reviews were good and while he was not their employee of the month, he was well liked and considered a good employee by his co-workers.

The Employee filed a complaint that he was being discriminated against by his Supervisor. His complaint was age discrimination and creating a hostile work environment. The HR Manager conducted an investigation into the matter and found that the Supervisor had made comments about the employee that were based on his age. The Supervisor had made very public comments directly to the employee asking him “when are you going to retire old man” and “let me get one of the younger guys to help you.”

The Supervisor admitted to making the comments, but they were not meant in a derogatory manner, they were meant in humor. He claimed that he had worked with the employee for several years and they have never had a problem before. The HR Manager asked “why would you think he would have a problem with you now?” The Supervisor replied, the employee is calling out more and more due to health reasons. He has even missed several weeks and months over the past few years due to his failing health. But because of his seniority and the fact were a union shop, there is nothing we can do about it. His constant call outs causes an obvious reduction in our productivity. The Supervisor than stated, I have brought this issue up to my managers and we have asked that this employee be transferred to a position that will not cause him more distress to his conditions. We were told that we could not do that because unless the employee requests the transfer, he could file a complaint with the union.

The Human Resources Manager than stated to the Supervisor that he should not be discussing the employee’s medical conditions at work, since this information was protected under HIPPA and Privacy Act Laws. The Supervisor replied that the employee was telling everyone in the department about his medical conditions. In fact, he emailed to most people while he was out on sick leave about his medical conditions, he still had the emails.

(Dilemma One for the HR Manager) Is this a violation of Privacy and HIPPA? The answer would be no, because the information was being openly disseminated by the employee not the company and this was verified during the investigation.

During the investigation, it becomes clear that this employee has a long history of violating the company computer policy by logging into his personal email account and accepting personnel and inappropriate emails on his work email account. It is also determined that this long time and respected employee has a long history of engaging in inappropriate jokes, comments, and conversations at work that involved sexual, racist, and generally inappropriate remarks.

(Dilemma Two for the HR Manager) is the fact that the Supervisor is African American and the employee is white. Is the Employee complaining because he honestly feels he has been discriminated against because of his age (he is over 50 and thus qualifies under the protected class requirements of the EEOC), is the Supervisor just retaliating for comments the employee has made over the years, or is there grounds for and EEOC investigation at all?

To answer the question, yes, there is a sufficient ground for two EEOC investigations and there are also grounds for disciplinary action on both the Supervisor and the Employee. But this leads into HR Manager Dilemma number 3. Why is this happening? What to do now?

Just like this Human Resources Manager, I and many other HR Managers out there have run into this situation. You have a complaint coming from an employee who should have had complaints brought against them and now what do you do? If you punish the employee, it resembles “retaliation” by the company. If you only discipline the Supervisor, you’re encouraging and reinforcing the employee’s inappropriate behavior. If you punish both, it looks like you doing it so no one looks like a bad guy “they had to punish me for complaining against the supervisor so I can’t sue the company.” Sound very familiar to anyone.

It’s a very slippery sloop and once you begin down it, your companies EEOC program starts to erode and enforcing it in the future loses its strength.

How do you prevent this from happening? I will beat the dead horse again (please don’t call the animal rights people; I was just making a statement, not an action). You train your employees, you train your supervisors, you train everyone and you enforce the policies and you punish supervisors and managers who do not enforce the policies. I know this sounds very strict, and too much Political Correctness. This way is not very productive and is not encouraging a positive work environment.

It may sound that way, but after the initial period of sarcasm, jokes, and whining. Your overall staff of employees will appreciate it. They will no longer have to endure the inappropriate conversations, jokes, and innuendos by the small percentage of people who feel the adolescent need to re-create their middle school years. Employees will soon learn to do without the passive aggressive behavior and hostile communication and conduct their work with a more assertive and co-hesive environment. If football and Terrell Owens can teach us anything, it’s how ineffective a team can be when one person is acting un-professional, running their mouth and criticizing and blaming everyone, even if they are a top performer.

So what happen to the Supervisor and what happen to the employee? Does it really matter, because now hopefully you can realize that no one is perfect and there are always three sides to every story, the accusers, the accused, and the reality? What is the reality of this story? What do you think it should be?

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