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1. FEATURE STORY:
ISIAH THOMAS IS NOT ABOVE THE LAW

If two-time NBA championship winning Hall of Famer Isiah Thomas is not above the law, then surely the CEO, president, or owner of your organization is not. That's the message you need to get across to top brass who don't take your anti-discrimination efforts seriously. If the executives in your organization are resistant to receiving sexual harassment training, use Thomas as an example of why they should care.

Last week, a jury decided that Thomas, coach and president of the NY Knicks, had sexually harassed former vice president of Marketing Anucha Browne Sanders. Browne Sanders had alleged that Thomas routinely called her a "bitch" and "ho," then later declared his love for her and made unwanted advances.

Thomas does not have to pay punitive damages, but the jury ordered Madison Square Garden to pay Browne Sanders $6 million for allowing a hostile work environment to exist and $2.6 million for retaliation; it ordered Garden chairman, president, and CEO James Dolan to pay $3 million for retaliation. The judge will determine compensatory damages next month, which could add another $10 million. (Browne Sanders v. Madison Square Garden LP, S.D.NY, No. 06 Civ. 589)

HR's Dilemma

HR is charged with enforcing company policies and keeping the company legally compliant by the very same executives who often act as though the rules don't apply to them. So the question is: How much can you push an exec who refuses to attend "mandatory" sexual harassment training? You can try to convince them by getting to the heart of their resistance.

"I don't have the time" / "I need to attend to more important business matters." How much time do they want to take to deal with a sexual harassment lawsuit? A deposition takes time. Testifying in court takes time. Meeting with lawyers takes time.

This is not to say that by merely attending a training session, a lawsuit will never arise. But training is just one part of showing that your organization made a good-faith effort to prevent harassment, and that can help make a lawsuit go away faster.

"I would never do anything illegal." Are they sure? Thomas stated in his deposition that it is not as bad for a black man to call a black woman "bitch" as it is for a white man to do so. Whether or not you agree with this distinction, the behavior is offensive, plain and simple. There's validity to race discrimination claims where the accuser and accused are of the same race, so why should sexual harassment be more acceptable where the accuser and accused are of the same race?

"It's part of the culture/environment." "Locker room talk" in a sports organization, go figure. Now, go figure that this ruling went against Thomas, et al.

Here's another example: An HR manager responded to questions about an employee's allegations of sexual harassment by stating: "This is a mill-type environment. If she doesn't like it here, she can go get a job somewhere else." Combined with other evidence of the HR manager's "reckless disregard" toward the complaining employee, a court upheld a jury award of $75,000 in punitive damages. (Parker v. General Extrusions, Inc., 6th Cir., No. 06-3353, 2007)

If organizations that are sports-centric, blue collar, or male-dominated (like the finance industry, which has certainly seen its share of sex discrimination and harassment lawsuits) can't get away with a "boys will be boys" attitude, neither can yours.

If you're interested in exploring on-site or live webinar training options for your organization's top executives, contact Fran Goggin at 800-879-2441 ext. 119 or e-mail fgoggin@ahipubs.com.

2. CATHIE'S CORNER:
HR ALSO WEARS A COACH'S HAT

Last week, I tackled tips for an HR manager who was new to a company. This week, I'll talk about the management coaching I've been doing for supervisors who are new to management positions. One of the new supervisors I work with was coming up on a performance review that had the potential to turn into a termination.

Hannah, the supervisor, has never termed anyone before. The employee, Rachel, has been working there for three months. She has a low-level but responsible job in a field in which she has a degree and a year's experience. Despite that, her performance needs serious improvement. Her attendance and her attitude also are in need of a major adjustment.

When I began coaching Hannah, our first reaction was to fire Rachel. But Hannah was nervous about terminating someone and wanted to give her another chance. So we settled on probation and a performance improvement plan (PIP), with termination a possibility in the future. My goals in coaching Hannah were to make sure she understood the applicable laws, understood what it is she wanted to accomplish, and was prepared for at least the foreseeable responses to the situation.

Applicable laws. Hannah had a few misconceptions about what was and was not allowed. She had picked up bits and pieces of half-heard information and misinterpreted what they meant.

• She considered attitude to be too subjective a reason for such a drastic step as termination. She did not understand what was considered "good cause" to terminate someone. I explained that, since Rachel's performance and attendance were both below par, this was "good cause" to terminate.

• She thought there was special protection from termination that went into effect on the 91st day of employment. I explained that employees don't get special protection just because they've made it through the so-called "probation" period.

• She believed that as long as an employee brought in a doctor's note, an absence for illness was automatically protected. This company did not meet the definition of a qualifying employer under the Family and Medical Leave Act. And even if it did, Rachel had not worked there long enough, so a doctor's note provided her with no protection.

What needed to be accomplished. After making sure Hannah really understood what the appropriate laws do and do not say, we discussed Hannah's responsibility to give Rachel a clear and unambiguous explanation of what is expected of her and what will happen if she does not fulfill those expectations. I specified that Rachel did not have to agree that her performance has been unacceptable, but she needed to understand that Hannah did not find it so, and that she needed to take the appropriate steps to correct it.

So Hannah wrote a letter that Rachel will be given during the meeting. The letter identified the length of the probation, the terms of the PIP, and what will and will not be considered to be meeting them. It also spelled out that failure to meet the terms of the PIP would result in termination. Hannah understood the wisdom of having Rachel sign a copy of the letter, which will be put into her file.

Foreseeable response. Finally, I advised Hannah to be prepared in the not-unlikely (under the circumstances) event that Rachel decided to quit during or at the end of the meeting. Given the nature of her job and the amount of information she handles, it would be unwise to allow her to work out her notice. In our state, an employee who quits gets their final paycheck on the next regular payday, but an employee who is fired gets their final pay on the way out the door. So that there was no question, since Rachel would be let go immediately if she chose to quit, her final check was ready for her if it was needed, as well as the other paperwork for a terminated employee. Ultimately, Rachel accepted the terms of her probation and PIP, so the unneeded paperwork and check were destroyed.

Catherine Bannon is the President of HR by Request, Inc., in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting firm.

INADVERTENT HARASSMENT MAY STILL BE ILLEGAL HARASSMENT

Vulgar e-mails about an employee can hurt a company in court, even if the e-mail is not sent to the employee and is not intended for the employee to ever...View the full story on our website.

FREE REPORT

Check out the Free Report, "Domestic Violence Isn't So Domestic After All," which explores what you and your staff should do should a domestic violence issue arise in your workplace. You get legal and practical pointers, as well as a sample policy and a role-playing scenario that you can incorporate into a management training session.