Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

Well, some of the fall T.V. shows had their season premieres this week. If you watched the series premiere of Free Agents on NBC last night starring Hank Azaria, I hope you would agree talking at a staff meeting about a co-worker’s evening escapade is not appropriate for the workplace. In fact, even more shocking was when the head of the company walks into the meeting and is told what the discussion is about, and encourages Hank Azaria’s character to just share “the good parts.” Hank’s character tries to shut down the conversation by stating, he met a woman last night and they had “wild animal sex” all night long. But, the discussion doesn’t end there. No, instead several colleagues begin to prod Hank’s character for more details, what was her body type, did her undergarments match, when the head of the company interjects, “Just the size and shape of breasts, straight to positions.” Of course, for T.V. the idea is to entertain, so you don’t want to just have the characters sitting around talking about work. But, if this type of discussion was occurring in your workplace, the doors are wide-open for a sexual harassment lawsuit.

It is important to remember in cases of sexual harassment, it is the welcomeness of the conduct by the recipient that is relevant to whether the conduct is harassment, regardless of whether the intent of the person engaging in the conduct is harmless or even friendly. Because it is almost impossible to judge whether conduct is welcome or unwelcome, most businesses have adopted a zero-tolerance policy with respect to sexual harassment in the workplace.

How do you protect your business?

1) Have a sexual harassment policy in your employee handbook or policy and procedure manual.
2) Train employees on the sexual harassment policy.
3) If you receive a complaint about sexual harassment, do a fair and thorough investigation.
4) If you see employees acting in inappropriate ways, put a stop to it immediately!

T.V. can be both entertaining and educational. The episode of Free Agents last night is a perfect example of what you do not want occurring in your workplace.
 

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Yesterday, veteran play-by-play announcer Ron Franklin was fired by ESPN for calling sideline reporter Jeannine Edwards “sweet baby” during a production meeting before the Chick-fil-A Bowl. When Ms. Edwards objected to the remark by Mr. Franklin, he called her an “asshole”. Mr. Franklin was removed from ESPN Radio coverage for the 2011 Fiesta Bowl. Mr. Franklin subsequently apologized for his remarks, but that wasn’t enough to save his job.

This isn’t Mr. Franklin’s first incident with the use of inappropriate remarks while working at ESPN. Back in October 2005, ESPN communicated with Mr. Franklin that his on-air comment calling sideline reporter Holly Rowe “sweetheart,” was inappropriate. That matter was addressed internally by ESPN.

The Y! Sports Blog remarked, “The network should be praised for taking a stand, but the fact that it waited four days suggests that if the Franklin story had gone away quickly, he’d still have a job today.”   I respectfully, disagree with the author’s position. My first recommendation would be to conduct an investigation into the alleged incident, before taking any disciplinary action against an employee. Making a knee-jerk reaction generally lands an employer in hot water later. I have no knowledge on what ESPN was doing in the days since the incident occurred on Dec. 31, 2010, but taking four days over a holiday weekend to investigate and review a matter, and then issue the discipline does not seem overly long to me.

ESPN clearly takes workplace issues seriously. Mr. Franklin is not the first employee to receive discipline from the network for inappropriate comments or demeaning behavior towards females. TV host, Tony Kornheiser was suspended last year for comments made on-air about a female anchor’s wardrobe. Baseball analysts Harold Reynolds and Steve Phillips were both fired in separate incidents for demeaning behavior toward female employees. In fact, in 1992 ESPN suspended the current “Monday Night Football” announcer Mike Tirico for harassment.

Kudos to ESPN for actually holding employees accountable for their actions and not just brushing these types of issues under the rug. If you receive a complaint of harassment from an employee, do your due diligence and give it a proper and complete investigation before taking action. Collect all the facts first, so a well-reasoned decision can be made.

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This week the new CBS Sunday night reality show “Undercover Boss” followed President and CEO Coby Brooks of Hooters of America Inc., as he worked undercover in entry level positions in his own restaurants. He cleaned up the kitchen in one restaurant, worked in the supply warehouse packaging hot wing sauce, worked as an assistant manager, and did sales and marketing with two Hooters girls offering free wings on a street corner.

Brooks admitted it had been over 20 years since he worked in a restaurant, and this was very apparent. He seemed surprised and shocked that anyone would be offended by the image of the Hooter Girls, or think his company was not pro-female.

Brooks defended the Hooter Girls concept and seemed to feel badly when a woman on the street  stated, she wouldn’t want her daughters to work at Hooters. Brooks disconnect with his company’s perception and the company he thought he was running seemed real, and not just fabricated for prime-time television.

When a Hooters manager named Jimbo suggested the Hooter Girls working at his restaurant play the reindeer game to decide which one would get to go home early, Brooks looked nausated. Jimbo then placed a plate of beans in front of each Hooter Girl and they had a race to see who could eat the plate of beans first. The question I have for Brooks was why wasn’t Jimbo fired? During the big reveal when Brooks identity was disclosed to the employees, Jimbo was simply chastised for his treatment of the Hooter Girls and told not to do that kind of thing again.

To run a good business, it is important to have an understanding of all aspects from the bottom up to the top. Anything that looks like sexual harassment should be promptly investigated and any inappropriate behavior stopped immediately. My message to Brooks-Fire Jimbo!

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The United States Equal Employment Opportunity Commission (EEOC) office received a black eye this month, when a judge with the Northern District of Iowa federal court issued an order requiring the EEOC to pay more than $4.5 million dollars in costs and attorneys fees in a dismissed lawsuit against a trucking company.

Many people, including Debra L. Reilly of the Workplace Investigations Blog and Tom Crane from the San Antonio Employment Law Blog are blogging from differing perspectives on this recent federal court decision.

The EEOC had filed a series of claims against trucking company CRST Van Expedited, alleging sexual harassment of female employees. The Court dismissed the case, finding the EEOC had failed to investigate and consolidate individual claims prior to bringing the Title VII lawsuit. The judge did not appreciate the EEOC’s litigation strategy of ‘sue first, ask questions later’.

As Ms. Reilly and Mr. Crane point out on their blogs, it is important to investigate claims before proceeding with a lawsuit. Rest assured the EEOC will not be making this mistake again. All employers should be aware EEOC will be more cautious in the future.

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