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When one of my employees sued my shop manager for sexual harassment — along with me for not putting a stop to it — I was sure I’d done nothing wrong. Little did I know that my almost nonexistent company policy on harassment was about to be put to the test — and fail miserably.
When you’ve been in business as long as I have, the daily mail isn’t very exciting. You shuffle through it and throw most of it away. Occasionally, however, you get “OFFICIAL” mail the certified ones in which there’s seldom any good news. Usually the news isn’t life-altering or monumental. More often than not, it’s simply irritating.
But on a cold Midwestern Jan. 14th, I received a life-altering “OFFICIAL” letter. The certified letter was from the State Department of Human Rights, with a copy forwarded to the Equal Employment Opportunity Commission. It was a “Charge of Discrimination” filed with the state by one of my employees, stating that the employee was accusing me of “sexual harassment.” Actually, the charge was made by a male employee against a male shop manager, but my company was named as having done nothing to stop this sexual harassment from July 2001 to December 2001. It stated that I was never available to oppose the sexual harassment, creating a hostile atmosphere.
As I read these charges, I felt like someone had punched me in the stomach, and I had a sick feeling about it for days. I worried about my company’s reputation being damaged, as well as my own. First I panicked, then I got mad and finally I decided to call my attorney. That was the smartest thing I did.
I told my attorney about the letter, and he said there were only one or two people in the area good enough to work a “harassment in the workplace” case. I chose Al Pranaitis of Alton, Ill., who’d handled many cases for different employers in the area and around the country.
Al dug right in. We were sure they didn’t have a case, but remember, when dealing with any government agency, it seems like you’re guilty until proven innocent. Al said there was much work to do several filings had to be prepared.
The State Department of Human Rights sent 18 questions that we had to answer about the charges. This is when I started to worry … a whole bunch. The system was about to test my almost nonexistent company policy on harassment and, in general, our policy on employee rights.
Based on the questions that were asked, it seemed as if the Human Rights people had already found me guilty. But my attorney assured me that the questions were typical in these cases.
They also wanted names of other employees who might have had knowledge of this harassment, who they were, what they did and all personnel records on each employee. They wanted copies of our nonexistent harassment policy, as well as our follow-up procedures if harassment had been suggested. Were the charges brought to our attention ahead of time and did we investigate? Were there any prior charges of harassment? If so, who made them? Had anyone ever been fired from the company? If so, they wanted their names to investigate if any of these people had been harassed.
The form went on and on.
My attorney, Al, interviewed all my employees, and we compiled written statements from them. All the employees except the accuser thought the whole thing was a big joke. Everyone agreed that no one had harassed anyone else.
I was raised in a fairly strong Baptist family, eight “perfect-attendance” pins to prove it. Seldom were words referencing sexual acts or references to the human body in a sexual manner used in our family conversations. But in our work world, many employees told jokes of a sexual nature. I personally didn’t care for them, but as an employer, I saw no real harm in allowing employees to speak freely. (Now I know that that attitude can come back to bite you later.)
We all looked at it as kidding around with your fellow worker. For example, I had an administrative assistant who used to flirt with the male workers. I once overheard a co-worker tell another co-worker that my assistant had a “nice butt.” I quickly verbally reprimanded the employee and told him that that kind of comment could turn into a sexual harassment case. My assistant, overhearing my reprimand, came to me and said she viewed it as a compliment. End of case. But if later she had, say, been fired, she might have been able to come back and file charges against us if I hadn’t reprimanded the employee who had made the remark.
Getting back to the case at hand, for the first time in my Protestant life, the words “oral sex” would be used in many future conversations. In fact, they became almost household words for the better part of a year.
The charges went something like this: The accuser said that the shop manager requested oral sex from him over a six-month period and specifically on a day when the employee had asked the manager for a raise in pay. The manager then walked toward the restroom, leaving the door open while he urinated and said to the employee, “The only raise you’ll get is right here.”
This remark was a key statement that our accused was basing his case on because the state said a request for oral sex is a form of sexual harassment. The Human Rights people wanted to conduct a fact-finding meeting among all parties to determine if there was any merit to the accusation.
It also allowed both sides to do what they called “venting.” They say you need to get it out of your system if you’re ever to get over the issues and hopefully negotiate a settlement.
Here they were, talking about settlements, and I hadn’t even been “vented” yet.
Six months after all this started, we received notice of a fact-finding hearing to decide whether there was a basis for proceeding with the charges. Only certain people would be allowed to speak, and they were listed on the notice. They were the employee who filed the charge, my shop manager and me. My attorney could be there but couldn’t ask any questions or make any arguments.
As the date of the hearing approached, our attorney drilled my manager and me for what seemed like hours, asking all kinds of crazy questions just like the ones the investigator from the state would ask.
Month seven, we finally went to the hearing. And I was hoping this would be the end of it. The accusing employee was basically representing himself, with his girlfriend there for “moral” support. But he wasn’t totally representing himself. Using taxpayers dollars, a representative from the Department of Human Resources had put all the paperwork together for him. All of his legal fees up till then were furnished free of charge.
Our investigator was a woman who said she’d had much experience in such matters and usually hears two cases per day. She assured us that all facts would be considered.
We started by our investigator reciting what the Department of Human Rights says constitutes sexual harassment in the workplace: any unwelcome advances or requests for sexual favors or any conduct of a sexual nature when submission to such conduct is expressed or merely suggested; or submission or rejection of the conduct by an employee is used as a basis for employment decisions affecting the employee; or if the conduct interferes with the employee’s job performance or creates an intimidating, hostile or offensive work environment.
We both called each other liars.
After reading this statement, our investigator went on to tell us that her job was to define the issues, determine which facts were undisputed, obtain evidence and ascertain whether there was a basis for the charge to go forward unless settled and that only requested people could talk or answer questions during her investigation. Again with the word “settlement.” But I had no intention of negotiating any settlement because I believed we were innocent.
I also believed that there could never be sexual harassment in an all-male environment. Boy was I wrong about that.
During the hearing, our accuser was allowed to state his case. We weren’t allowed to talk while our accuser was speaking, and we weren’t allowed to interrupt or dispute anything until he was done “venting.” He spent about an hour venting (it seemed like forever).
Finally, my time came. As I spoke, our accuser continually interrupted me, disputing almost every word. He almost had me believing I was wrong. He kept calling it all lies.
Our investigator asked many questions of my shop manager, me and our accuser. By the nature of her questions, it seemed to me she was leaning our way and could see through our accuser’s harassment claim.
Finally, we exchanged questions of each other, you know, face your accuser, and we both called each other liars. The comments were fired back and forth for about another hour. The investigator concluded the hearing with a comment that she doubted there would be any need to proceed further.
I left the hearing feeling very positive.
But my attorney put a damper on my spirits. He told me that it takes very little evidence for an investigator to conclude that a case should go forward and that he wouldn’t be surprised if that were her conclusion. He went on to say that this doesn’t mean we’d lose the case in the end. It would just mean the case would go forward.
I didn’t feel especially comforted.
After three months, we still hadn’t gotten the investigator’s determination. Finally, early in November, almost a year after the charges were filed with Human Rights, we got an “OFFICIAL” letter from the Department of Human Rights called a “Notice of Substantial Evidence.” Our investigator, after carefully reviewing all the evidence, had decided that since all parties, including myself, had allowed jokes of a sexual nature to be told at the workplace with no punishment or attempt by management to stop them, there was substantial evidence.
With substantial evidence, the investigator said that this case was best suited for hearing before a “trier of fact” for a decision. She concluded this because all the evidence was from witnesses who may or may not have been credible.
Again, I felt like I was guilty until proven innocent. After all, I was the big bad employer who didn’t stop my employees from telling off-color jokes in front of our accuser. But I hadn’t thought I needed to stop it since our accuser was telling worse jokes and talking dirtier than the other employees. He’d even describe sexual acts he’d performed the night before just to see if anyone could better his story.
According to the Human Rights people, I should have fired the whole bunch for telling jokes of a sexual nature and for joking about sex, and I agree.
So basically the investigator had concluded that there might have been some truth to the accusations. I, however, couldn’t understand why the investigator hadn’t thrown this case out.
I found that I was now obsessed with these accusations. I couldn’t sleep at night. I couldn’t look at my manager without starting to think how he had made my life miserable. And even though my attorney again told me that the finding of “substantial evidence” didn’t mean we’d ultimately lose, I needed closure.
I didn’t need to “vent” anymore. I needed it all to go away. It was consuming all my time and energy, and everything else was suffering.
After a few weeks, the Human Rights people sent a letter saying that they were ordering us to conciliate this case. Conciliation is a process in which a Department staff attorney facilitates settlement discussions with both parties via the telephone.
This made me blow my stack. No. 1, I didn’t want to settle, and No. 2, I wanted to face my accuser eye to eye, not on the phone.
After we refused to conciliate, they suggested a state mediation with an impartial third party. That didn’t sound too appealing either. I didn’t know who the mediator would be or what to expect. But if we didn’t agree to mediate or if the mediation didn’t result in a settlement, the Human Rights Department would file a “complaint” with the Human Rights Commission for the accusing employee. Then the matter would be set for a trial in the Human Rights Commission.
So my attorney and I agreed to try to mediate, although he had tried very hard to talk me into taking it to trial. He was sure we could beat them if all the facts were presented in the proper light. But remember, I’m going nuts, possessed. I needed closure.
My attorney and I wanted to set up the mediation close to home for all of us. Thanks to state budget constraints, the only place that could handle such a nasty case was in the other end of the state 280 miles away. We were sure our accuser wouldn’t want to go that far to try to settle, but much to our surprise, he agreed.
Finally, a full 13 months after this started, we tried to “mediate.” Our mediator also was a woman. She explained that if there were a settlement that was agreed to by all, then all the details would be kept strictly confidential. The finding would then be filed with the Human Rights Commission for final approval.
Here we go again. The mediator explained the rules and gave our accuser about two hours for “venting,” just to make sure it would all be out of his system. Finally, she asked our accuser how much money he thought we should give him. He told the mediator that he needed to go outside, smoke a cigarette and think about it. I’m thinking, “You have got to be kidding? He doesn’t know how much he wants?”
About 30 minutes went by, and he finally came back in so the nightmare could continue. He said he wanted $187,000.
I couldn’t believe my ears. My attorney and I went outside. Al explained to me that we should make a $1,000 counteroffer. I thought that was nuts, but Al said, “Trust me on this. He won’t take it, but we’ll set the tone. And then he’ll come back with something more reasonable.”
OK. So we went with our offer and, of course, our accuser refused it. But then the biggest surprise of all occurred. The mediator said, “Sorry you guys couldn’t work this out. I guess you’ll see each other at trial.”
What!!? My mouth dropped. I was in shock. I drove five hours to hear a rerun of two hours of “venting” and then to just go home? Whatever happened to the negotiation process?
Wasn’t she supposed to keep the ball bouncing?
I guess not. She said we were too far apart to negotiate.
My attorney, Al, knowing I wanted closure, stood up and said that we came to see if this matter could be settled, but we needed to do more than just stop after one offer from each side.
We offered to sit back down and have our accuser come back with another more acceptable offer. So he came back with his “final offer.”
We weren’t happy with his “final offer,” so we nudged our counteroffer up just a bit.
Through a series of more “final offers” and counteroffers, we finally reached a settlement. Because the settlement papers we had to sign required confidentiality, I cannot say what the amount of the final settlement was. But I can say that I paid a little more than my attorney wanted me to. Fortunately, it was an amount I could live with. It also gave me the “closure” I so desperately needed.
About two months later, the Human Rights Commission and EEOC both dismissed the charges due to the settlement. Life went on. Finally.
There is a moral to this story a wake-up call I was forced to answer. You say this would never happen to you, but think again. It very well could happen to you if you don’t have some procedures or rules in place.
Ask yourself the following questions to see if you’re prepared:
- Do you have sexual harassment policies?
- Have you trained your management how to handle claims of
- Do your employees know your policies?
- Do you have a designated person to impartially investigate all charges of harassment? (You should have zero tolerance for any type of harassment and all your people need to know it.)
- Do you have all the necessary government notices posted where all your employees can find them and read them privately?
- Are all your postings the most current available? (Laws change, and rules differ from state to state.)
- Are you prepared to have all your policies put to a test? Are they bullet proof?
- Do you have a good attorney?
- Has your attorney looked over your policies and procedures?
The smartest thing I did during this entire nightmare was to hire a good attorney. I got so emotional during all of this that I couldn’t think straight but my attorney made me toe the line and he remained calm. He saved my hide more than once during the ordeal.
After 30 years in business, I thought I’d seen it all. I hadn’t. Make sure you’re prepared for the unexpected and have all your policies and documents in place. And tell your techs to take down all those girly calendars in their open toolboxes and on the walls. They can take them home and put them on their refrigerators, but they can’t have them in the shop.
Most of all, do not tolerate any “off the wall” remarks or statements in the workplace.
One final thing to add to your “just when you think you have heard it all” category. Can you guess how the “accuser” and my shop manager are connected outside of work? You’ll never guess, unless I tell you, but here’s a hint: I gave the accuser his job because the shop manager asked me to hire him. Answer: They were brothers.*
Andy Batchelor is the former owner of Andy’s Auto Body of Alton, Inc. in Alton, Ill., and had been a self-employed automotive repair owner for more than 30 years. He’s a certified Automotive Specialist with training from Rankin Technical School, has achieved the I-CAR Platinum Individual designation, has Master Collision Certification from ASE and a degree in Business Administration from Lewis and Clark Community College. Batchelor also serves as I-CAR’s Southern Illinois Training Chairman. Batchelor and his wife, Nancy, reside in Alton, Ill., and have two children, both married and living in the suburbs of Chicago. Batchelor can be reached at [email protected]
* When Andy’s shop manager first came to him and asked him to hire his brother, who we’ll call Bob, Andy said he was against hiring family (for reasons like this!), but he went against his better judgment and hired him anyway because he trusted his shop manager, who we’ll call Frank. Some time later, their dad on his death bed supposedly promised that Frank would inherit a gun. Bob also wanted the gun and later stole it from Frank’s house. It had a lot of sentimental value to Frank, so he stole it back. Big family mess which spilled over into Andy’s shop.
A Postscript from My Attorney
Even though employers want to win the cases brought against them and even though their attorneys might be telling them that they’ll win the case at trial, it’s not unusual for employers to want to resolve claims brought against them without having to proceed all the way through to trial.
Employment discrimination claims, including sexual harassment claims, can be expensive to defend. Not only are there attorney fees, but also the expense in terms of the time that management personnel, co-workers, etc., have to spend gathering documents and other information, answering interrogatories (written questions in a suit), conferring with the attorney and attending hearings.
In most cases (depending on the jurisdiction), the employee accused of the harassment won’t even be a party to the suit, even though the employer will be held responsible for the unlawful behavior. So it’s the employer who pays, not the individual employee accused of the harassment.
For some employers, like Andy, there’s also the emotional toll that comes from being accused.
As with any other type of litigation, the best defense to any employment discrimination claim is prevention of the objectionable forms of behavior that lead to such claims. An employer who has good anti-discrimination policies in effect, which are adequately communicated to the employees, and who enforces those policies is much less likely to receive a discrimination charge.
Do you have such policies in place, communicated and enforced? If not, you’d be wise to make an appointment with a knowledgeable attorney soon.
Writer and attorney Al Pranaitis can be reached at (618) 465-7745 or at [email protected]