Reprinted from the June 15, 2006 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Don’t Take Sides When Co-Workers Clash

As a manager, you have no choice but to get in the middle of an employee dispute in order to keep the peace. And in the middle is where you must stay: Any signs that your investigation is not impartial can turn an employee’s internal complaint into a courtroom complaint.

OFFENDED AND OUTRAGED
Jamar James couldn’t believe his ears. In the five-minute conversation he had with one of his white co-workers, Tara Moran, she managed to make several comments that not only offended him, but also two other black employees who happened to be standing in earshot. James responded with a few choice racial remarks of his own.

As taken aback as James was by Moran’s inappropriate remarks, he never complained to his supervisor. That is, until three days later, when Moran told James that a truck driver who had arrived to pick up a delivery did not want to work with him because he was a “n——.”

Outraged, James stormed into the office of his supervisor, Sean Corbett, and complained about the driver’s comments. In filing his complaint, however, James never mentioned Moran or the racially charged conversation they had had a few days earlier. Corbett immediately took action to bar the driver from the premises.

HOSTILE AND HASTY
A week later, it was Moran’s turn to march into Corbett’s office.

“What’s this?” Corbett asked, taking a piece of paper from her hand.

“It’s my resignation,” Moran announced. “I can’t work with Jamar anymore. His racial remarks have created a hostile work environment.”

“Before you resign, why don’t you give me the opportunity to investigate the matter,” Corbett proposed.

“I don’t know,” Moran hesitated.

“Would you consider rescinding your resignation if Jamar was fired?” the manager asked.

“I suppose,” Moran agreed.

“Then let me talk to Jamar and get to the bottom of this before you make any hasty decisions.”

DISCIPLINED AND DISCHARGED
During Corbett’s investigation, the racially charged conversation between James and Moran came to light. James explained how Moran made comments that he found offensive and that two other employees who overheard her were also offended. Moran claimed that James answered with racial remarks of his own.

Corbett didn’t feel he needed to talk to anyone else. The manager summoned James to his office to discuss his findings.

“Since you offended each other, I’m issuing both of you formal warnings to refrain from making race-related comments again,” Corbett told him. “And I’d like you to apologize to Tara and put your issues behind you.”

“I’m not going to apologize for something she instigated!” James said, standing his ground. “After what she said, you can’t expect me to just apologize and move on so quickly.”

Corbett fired James a few days later, citing his refusal to put his issues with Moran behind him.

RACE AND RETALIATION
After losing his job, James sued his former employer for racial discrimination and retaliation. He pointed out these signs of bias.

1. Corbett asked Moran whether she would rescind her resignation if James was fired. This suggested that he had predetermined the outcome of the investigation.

2. Corbett never interviewed the two co-workers who allegedly overheard Moran’s comments.

3. James was asked to apologize, but Moran was not.

4. Moran, who was the instigator of the two racially charged incidents, was retained while James was terminated.

The company made no admission of guilt, but settled the employee’s lawsuit for $145,000.

ACTION TIPS
Keep the following in mind for retaining objectivity the next time you must look into co-worker complaints.

• Keep an open mind. You must be careful not to jump to any conclusions until you have gathered the facts of the current situation from both employees and any witnesses. Never go into an investigation with opinions already formed based on previous incidents or on employees’ personalities.
  
  
• Be sure to interview all employees who may be able to corroborate one side of the story or the other, especially those specifically pointed out to you by the accused or the accuser. Explain the purpose of the interview to witnesses without disclosing factual details, and make clear that anything discussed must be kept strictly confidential.
  
  
• Watch out for unequal “informal” penalties. Since James and Moran were found to have engaged in equally offensive behavior, issuing them the same formal warning was appropriate. What was not appropriate was Corbett only asking James to apologize and then firing him for refusing to do so.

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