Stop Pissing Me Off What to Do When the People You Work with Drive You Crazy (6 page)

Second, you must prove that the behavior is unwelcome by the victim, meaning that you didn’t encourage the behavior or participate in it. Third, in order to prove illegal harassment, you must show that it was severe, meaning that it interfered with work. Last, you have to prove that the employer knew about the harassment, or should have known, and did nothing. You must be able to prove all four of these factors in order to prove illegal harassment under the law.

harassment or discrimination under your

organization’s policies

Employers can, and frequently do, prohibit all harassment under their own policies, not just harassment based on race, sex, or other protected characteristics. This may include all

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behavior that is disrespectful. Check your organization’s policies, which should be posted in the workplace or on the Web site. You may be surprised to learn how broad it is. A typical statement might be:

WorkPLaCe HaraSSmenT

ABC Company is committed to providing all employees with a work environment free from hostility and harassment and provides this policy to express that commitment. We recognize that harassment of employees in any form destroys morale, impairs productivity, and is not permissible in a productive, cooperative environment. ABC Company will carefully investigate and vigorously enforce all reported violations of this policy. Harassment by management or coworkers including but not limited to harassment based upon race, sex, color, religion, national origin, age, disability, or veteran status, whether verbally or physically, will not be tolerated. Harassing language or actions are not only a violation of company policy, but may constitute an illegal act. We will comply with all federal, state, and/or local laws.

ABC Company prohibits workplace harassment of every

kind, including sexually related conduct of a physical, verbal, or visual nature that creates an intimidating, hostile, seductive, or offensive work environment; unwanted touching, patting, grabbing, repeated objectionable sexual flirtations, propositions, suggestive comments, lewd jokes, and display in the workplace of sexually explicit objects, drawings or photos. Of course, ABC Company also prohibits any employee from making unwelcome sexual advances or requests for sexual favors when submission or rejection of such conduct is used as the basis for employment-related decisions.

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Statements that said employer prohibits harassment “in any form” have become quite common in most workplaces. These statements can provide you with powerful ammunition when you confront the person whose boorish behavior may be borderline harassment and/or when you need to talk to your manager or HR.

If you’re still confused about what really crosses the line into legal or policy violations, check out the following list, provided by one of my clients:
Examples of Legal or Policy Violations

n Objectionable comments about a person’s age, race, skin color, national origin, ethnic background, religion, gender, marital status, disability or medical problem, or veteran status n Repeated and unwelcome requests for a date

n Racial, sexual orientation, sexist, age-related, or sexual jokes or comments

n Referring to a coworker in demeaning language (babe, girl/

boy, broad, colored, cripple, grandpa, pops)

n Following a person inside or outside of work

n Making sexual gestures

n Wearing or displaying the Confederate flag

n Accessing or displaying sexual or racial pictures, cartoons, or Web sites

n Unwelcoming touching of a person’s hair, clothing, or body

n Unwelcome kissing, hugging, or patting

n Wearing or displaying hate-related symbols ( e.g., a swastika) n Restraining or blocking the path of a person

n Touching oneself in a way that is suggestive in view of a coworker

n Spreading rumors about a coworker’s sex life, including affairs, marital status, or sexual orientation

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n Repeatedly leering at a coworker

n Making sexually suggestive facial expressions (winking, blowing kisses)

n Treating someone differently after a legally protected medical or family leave n Neglecting to consider a woman with small children for a job that requires travel

n Refusing to consider an older applicant because he or she is

“over-qualified”

NOTE: This list of examples does not include all potential
legal or policy violations.

There is always a question, of course, of whether your organization is willing to enforce the law and their policies. There is also the personal issue of whether you want to raise this with anyone for fear of formal or informal retaliation. We’ll deal more fully with those issues in Chapter 16.

values violations

In addition to formal policy statements, many organizations also have values statements. While these may seem as familiar and useless as wallpaper, you would be well advised to check them out, read them, and ponder whether any of the behavior you’re receiving at work seems to violate the organization’s stated values. These values may include things such as “people are our most important resource” and “we respect all our employees.”

Although it’s easy to become cynical about whether the organization really stands behind and intends to enforce these messages, if you bring them up at the appropriate time (more

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about this in later chapters), such as when you’re talking to the person engaging in the problem behavior or your manager or HR, it can be an incredibly skillful move. What I’m suggesting here is something along the lines of “Ed Idiot is doing X. When I was thinking about X, I started wondering if X were consistent with our values as a company. In looking at our statement of values in our policy manual, I see that we say Y. It just doesn’t seem to me that Ed Idiot’s behavior is consistent with our company values. Could you please clarify for me what is acceptable under our values statements?”

other workplace legal issues

Other examples of clearly illegal behavior in the workplace include issues such as your supervisor denying you legitimate breaks or overtime if you’re an hourly worker; failing to allow you appropriate time off under the Family and Medical Leave Act; disability discrimination and/or failing to allow appropriate accommodations if you have a disability; or denying workers’ compensation, whistleblower protection, or privacy. This chapter deals only with some of the more common violations.
hourly versus exeMpt QualiFications

In order to establish whether you are in fact entitled to overtime, you must first know whether or not you are an exempt or hourly employee. If you are exempt, what exactly are you exempt from? Being paid overtime. If you do not have significant supervisory responsibilities and/or high-level administrative or technical expertise, you’re hourly. You have a right to be paid overtime.

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Failure to allow FaMily and Medical leave

You have a right to twelve weeks a year of unpaid leave after your first year of employment to take care of a serious health condition, whether it’s your own or that of an immediate family member. Being denied this is illegal under the Family and Medical Leave Act (FMLA). You do not need to take this time off all at once but can do it in increments, as long as the total is no more than twelve weeks per year.

disaBility

If you have what the federal Americans with Disabilities Act (ADA) qualifies as a “permanent and substantial impairment of a major life function,” your employer can’t discriminate and must accommodate you. What is a
major life function
? Generally, the term encompasses things such as working, eating, sleeping, and walking. Could sex qualify as a major life function, meaning that you would be considered disabled if you couldn’t have sex? Believe it or not, the U.S. Supreme Court had to consider just such a case. A truck driver hurt his back. He could still drive a truck, so he couldn’t claim that as a permanent impairment of a major life function; he claimed instead that the back injury affected his sex life. He argued that before he hurt his back he was able to have sex thirty or forty times a month but after the injury, he could only have sex three to four times per month. The court said that it did not believe that sex was a “major life function”

such that he was disabled. They also pointed out that he had introduced no evidence of being able to have sex so often. If you are still able to perform your job and your employer can reasonably accommodate you without undue hardship,

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you have the right to be accommodated. Accommodations may include a special screen for your computer, a special chair because of back problems, or a flexible schedule for doctor’s appointments. Time off may also be appropriate. If disabled, you may not be denied a promotion or job if you are able to the work with a reasonable accommodation.

whistleBlower protection

You can’t be fired or disciplined for reporting a violation of the law or for refusing to violate a law. One of the first whistleblower cases involved a man who was called to testify against his employer in an IRS case. His boss came in the day before he was scheduled to testify and said the man should lie when he testified in court the next day because if he told the truth they would lose. The employee said that he couldn’t lie because he would be under oath. The boss replied that he could do what he liked but “I’m just telling you: tell the truth and you’ll be fired!”

Sure enough, the employee told the truth and they canned him. When he sued, the court found that it was the public policy of the state of California (and every other state) for people to be able to tell the truth in court and not be fired for doing so. This became known as whistleblower protection. Several different federal statutes, in addition to court cases, protect your right to complain about legal or public policy violations in the workplace, as well as to refuse to violate the law.

wrongFul terMination and other wrongFul actions

Believe it or not, the law implies that in employment relationships, you have a right to be treated fairly, as long as you

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are performing your duties and responsibilities as an employee in a reasonable way. This has been interpreted to mean that you should be warned before you’re fired, be given the promotions you were promised, and be treated fairly and in good faith.

Let me give you an example of one of the first cases in the country that considered this idea. It was a case brought by a gentleman named Wayne Pugh against See’s Candies, Inc. Mr. Pugh started out working at See’s as a dishwasher. Over the course of his thirty-two-year career, he worked his way up to vice president in charge of production.

Over time, Mr. Pugh and the president of the company became friends; they, and their spouses, even traveled and socialized together. The four had just returned from a golfing vacation in Spain. The day after the trip Mr. Pugh walked into the president’s office and the president abruptly fired him. When Mr. Pugh asked why, the president simply responded,

“Look deep within your heart and you will find the answer.” No other explanation was offered. Mr. Pugh looked deep within his heart, found the name of an attorney, and sued! He won the case. The court said that it was a violation of the “covenant of good faith and fair dealing” to fire a long-term employee with no warning.

privacy violations

You have a right to keep your private life private at work. Inappropriate or unwelcome questions about your personal life, medical issues, or off-work activities could violate your privacy. You have a right, for example, to march in a KKK

parade or a gay rights rally on your non-work time. Even if your employer finds out about these activities and disapproves,

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in most states you cannot be fired, disciplined, or harassed because of these non-work-hours pursuits.

threats and violence

You have a right to be safe at work. If someone’s threatening physical harm or engaging in physical abuse at work, they’re violating the law, as well as, most likely, your employer’s policy. Most organizations have strong statements against threats and violence. Here is an example:

“Every employee has a strong interest and responsibility in helping to maintain a safe working environment for themselves and their coworkers. The company strives to ensure a safe environment for all employees, and this policy is issued and administered to support this commitment. The company and its employees will have zero tolerance for threats and violent acts in the workplace. Examples of this could include intimidating, threatening or hostile behaviors such as physical abuse, vandalism, arson, sabotage, use of weapons, carrying weapons onto company property, or any other act which in management’s opinion is inappropriate to the workplace. Employees who observe or have knowledge of any violation of this policy should immediately report it to company management, human resources or corporate security, and should directly contact proper law enforcement authorities if there is an immediate serious threat to the safety or health of themselves or others.”

Every case of workplace violence by employees has been thoroughly studied. The vast majority of perpetrators had long years of service with their companies. Usually they felt they had been denied a promotion they thought they were entitled

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to, or they had been terminated. In virtually every case, the perpetrators made threats beforehand.

Most people who are violent share characteristic behaviors and exhibit warning signs. If you see a number of the following signs (not just one) you need to complain to your manager or HR department immediately: