Among the challenges employers face when trying to prevent discrimination is that it’s not always crystal clear to managers and employees that certain behaviors would qualify as discrimination. Below we give three scenarios that could open the doors to a harassment or discrimination claim.
Early November saw the CEO of McDonald’s fired after the company’s board discovered he’d had a consensual romantic relationship with an employee. Many people focused on the “consensual” part: why should he step down when both parties are adults, and both entered into the relationship freely?
HR professionals know why immediately: even if company policy hadn’t forbidden romantic relationships between managers and direct reports, or even with someone just lower on the org chart, it was still terrible form for the CEO to romance an employee. McDonald’s board, in essence, made “a very high profile example of its CEO,” and it definitely showed its employees how seriously it takes eradicating harassment in the workplace, a very good thing to do.
As #MeToo stories continue to make headlines, many companies still struggle with how to allow their employees to do what people naturally do – fall in love – while also working to keep employees safe and productive and the company itself free from lawsuits when a romance goes south. Or, as one person quoted in the article said when many of these on-the-job romances end: “[t]here tends to be hostility, there tends to be conflict and that could lead to claims.”
Every HR professional who read about the firing probably saw this instance of workplace romance as a potential lawsuit-in-the-making immediately. It’s a no brainer that McDonald’s board fired the CEO.
The lesson? Consensual or not, it’s almost impossible for a relationship between a higher-up and a subordinate to be truly equal: there’s always a power imbalance. If the subordinate worker feels even just a twinge of either hope for advancement or fear of retribution because of the relationship, the red flags of harassment start flying.
An employee’s mother dies suddenly. Their employer naturally feels deep sympathy for their worker, and they encourage her to be with her family and take some time off. She returns in a few days, and she’s not herself. Her manager figures this is normal. They cut her some slack, and ignore it when she arrives late most days and when both her productivity and quality of work suffer.
But this malaise continues, for weeks, possibly months. The employee’s manager speaks with her, gently admonishing her about her tardiness and work results, letting her know that unless they see improvement, they may have to let her go.
If they do let her go, could she file a claim of discrimination? Possibly!
We understand why her manager would want to let her go and why they may be surprised that this might be a form of discrimination: months have passed since her mother’s death, and her quality of work still is below par. She’s continually late. Plus, her boss gave her fair warning and told her what she needed to do to stay employed. She didn’t improve, so her employer did what they would do with any other employee; they let her go.
But mental health issues – and deep grief over the death of a loved one can turn into depression – should be given the same consideration as physical disabilities. In other words, an accommodation may be needed.
Making accommodations for a grieving employee helps her – obviously – and allows her employer to keep a once-stellar worker as she makes her way through her grief and becomes the great employee she was before.
Many companies can inadvertently mess up their disability accommodation process because they don’t recognize an accommodation request when it’s given.
Does a disabled employee have to say the words “reasonable accommodation” in order to receive the accommodation? Find out if you have the right answer for your clients in the @RealThinkHR blog. Click To Tweet
How? Because a disabled employee is not required to specifically use the words “reasonable accommodation” in their request. The employee instead may say something along the lines of “My wheelchair doesn’t fit under my desk,” or “I need six weeks off to have and recover from back surgery.” Both statements are a request for a reasonable accommodation, even though the words themselves are never spoken. If the accommodation isn’t given, it could open the employer to discrimination claims.
Few employees use the term “reasonable accommodation” when they make the request. One of the keys to preventing a disability discrimination claim is to train supervisors, managers, and other workers in some type of leadership position thoroughly so that they recognize an accommodation request when it’s given. The onus is on the employer to recognize an accommodation request, not the employee to say the “magic words.” All the employee has to do is make the request in what the ADA calls “plain English.”
Most of us want to be good people who would never knowingly harass or discriminate against another person. Yet even the most well-meaning among us can face situations at work that aren’t clear cut, and we may not even know at the time that we’re walking along a cliff’s edge. Our Workplace Harassment Prevention training courses and best practices provide access to harassment prevention policies, courses, procedures, and more.
Download ThinkHR’s Quick Guide to Anti-Harassment Compliance here!