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Back to school means back to work

The end of August is always a difficult time to successfully keep all the necessary balls in the air – for me, anyway.  Camp is over, it’s time for the big family vaca, and it’s all I can do to stay on top of everything (I know some of you out there are feeling my pain, yes?).  So blogging tends to take a back seat.  Yesterday, as I was shopping for new notebooks for my soon-to-be sixth grader, I got that excited feeling I used to get as a student every year.  Time for school!  It’s true – I was a nerd who loved notebook shopping and the anticipation of a new academic year.  I now feel that same elation as a mom.  My kid is back to school and I’m back to blogging.

Back to school


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Back to school means back to work

The end of August is always a difficult time to successfully keep all the necessary balls in the air – for me, anyway.  Camp is over, it’s time for the big family vaca, and it’s all I can do to stay on top of everything (I know some of you out there are feeling my pain, yes?).  So blogging tends to take a back seat.  Yesterday, as I was shopping for new notebooks for my soon-to-be sixth grader, I got that excited feeling I used to get as a student every year.  Time for school!  It’s true – I was a nerd who loved notebook shopping and the anticipation of a new academic year.  I now feel that same elation as a mom.  My kid is back to school and I’m back to blogging.


Back to school

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Treating employees differently can support discrimination claims

You probably already know this basic maxim of employee relations: treating “similarly situated” employees differently is great fodder for plaintiffs seeking to show discrimination.  A recent Seventh Circuit case demonstrates this nicely and serves as a good reminder for HR and employers to look for consistent treatment among employees.

In Orton-Bell v. State of Indiana, the plaintiff was a prison social worker who had an inter-office affair with a supervising officer.  When the employer discovered the affair, which violated policy, it terminated the plaintiff and he paramour.  But it allowed the male officer to resign in good standing, keep all of his benefits, and continue working at the prison as a contractor.  The plaintiff, on the other hand, left with nothing.  When she sued for sex discrimination based on this disparate treatment, the court sent her claims to a jury, finding a reasonable jury could conclude the better treatment of the officer constituted sex discrimination.

Lesson learned: When two employees engage in the same misconduct, treat them equally.  If, however, there is a good reason for treating them differently, document it.  The Orton-Bell court noted that the employer did not proffer a good reason for the disparate treatment.



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Executive Order bars employers with employment-related violations from receiving federal contracts

On July 31, 2014 President Obama signed the “Fair Pay and Safe Workplaces” order (see the Order here).  The Order applies to new federal contracts and requires the disclosure of all labor and employment law violations for the previous three years.  If you work as a government contractor or subcontractor, this is huge news.  Government contracts are the lifeblood for some employers and even seemingly minor employment law violations can be used to bar them from receiving such contracts.  Also, for contracts in excess of $1 million, the Order prohibits the use of mandatory arbitration.  If this Order could apply to your business, read it carefully so you understand these new rules.  It will become effective in 2016.

This is one more reason to make sure your HR house is in order.

president seal

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Effectively defending a harassment complaint

The recent case of Simpson v. Big Lots Stores provides a great example of how an employer can successfully defend against a serious complaint of sexual harassment.  Before sharing the facts, let’s review the Faragher/Ellerth defense, which refers to a pair of U.S. Supreme Court cases decided in 1998.  An employer can prevail in a hostile work environment harassment complaint, so long as there was no tangible employment action, if it can show (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the employee unreasonably failed to take advantage of any corrective or preventive opportunities provided by the employer.  The first prong of the defense is within the employer’s control.  It can be met so long as an employer has a solid anti-harassment policy that includes a clear complaint procedure, trains its employees on it, and investigates complaints of harassment.  The second prong, however, really depends on the employee.

Here are the Simpson facts: the employee was an assistant manager for Big Lots.  A co-worker allegedly harassed her and others on a regular basis by, among other things, discussing his sex life in explicit terms, commenting on females’ breasts and buttocks, and telling dirty jokes.  Big Lots had a clearly communicated harassment policy and provided a hotline for employees to make complaints.  Simpson lodged an anonymous complaint and Big Lots responded by immediately sending a representative to investigate.  Simpson did not participate in the investigation, even though she knew it was taking place.  Even without her participation, the investigation resulted in discipline for the co-worker.  Thereafter, Simpson complained about the co-worker to her boss, who brought in another district manager to investigate.  During this second investigation, Simpson was out of the office and did not make any attempts to reach the investigator.  She also told a co-worker who had been documenting the alleged harasser’s behavior not to share the documentation with the investigator.

After Simpson lost her job on an unrelated issue, she sued for harassment.  In dismissing the case, the court found the employer successfully invoked the Faragher/Ellerth defense, blaming Simpson for her failure to cooperate in, and her attempt to interfere with, the investigation.

What’s the lesson?  Have your harassment-prevention ducks in a row.  Be ready to jump in an investigate when you learn of potential harassment.  And document all efforts to communicate with the complainant.

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“One time at band camp” and Ohio State’s firing of band director over “sexual culture”

Ohio State University recently fired its marching band director Jonathan Waters after an internal investigation revealed ”serious cultural issues and an environment conducive to sexual harassment” among the students.  The investigation, which was commenced following a parent complaint, concluded that the band culture allowed students to sexually harass other students, and that the band director “knew or should have known” about it (click here for the investigation report).  It’s that last quote that should have every employer on alert.

Organizational leaders are expected to create and maintain a harassment free environment.  While context certainly matters and the college environment is, in many ways, quite unique from the typical workplace, the point about leadership applies across sectors.  There is a lot of debate about whether the firing was just and whether Waters should be held accountable for band traditions that pre-dated his tenure (such as students marching across the field in their underwear).  Regardless, the takeaway here is clear: if an employer, an HR professional, or a member of management knows of a potentially harassing environment, he/she/it has a duty to take steps to address and correct that environment.  Period.

one time at band camp

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Religion in the workplace: an issue that will continue to confound employers

Back in March the EEOC published a guidance entitled Religious Garb and Grooming in the Workplace, aimed at educating employers on their duty to provide reasonable accommodations to sincerely held religious beliefs.  It highlights employers’ obligations with respect to appearance standards and other facially neutral policies that can have religious implications for employees.  The issue of religion at work is one that I see continuing to grow as a hot topic (in fact, I just spoke about it at last week’s HR Star conference in Cleveland).  Under Title VII, employees have the right to some degree of religious expression at work, so long as they do not create an “undue burden” or proselytize.

A recently filed EEOC charge on this topic caught my eye: a newspaper editor in Iowa was fired based on a blog posting wherein he criticized the “gaystapo” for advancing LGBT rights despite the bible’s supposed rejection of them.  He stated “Shaw Media directly discriminated against me because of my [anti-gay] religious beliefs and my identity as an evangelical Christian . . . .”  Will the EEOC agree with him?  I tend to doubt it, as I think the employer had a right to terminate the editor given the public nature of his position and the fact that he used his position as a platform to express his religious views.  But you never know.  It’s a topic HR professionals and employers need to stay on top of.

While there is a lot of gray area here, I offer a couple of quick tips that can help employers stay out of trouble.  While they are not directly on point to the Iowa case, they can be good guides when navigating these issues:

  • Don’t reject requests for religious accommodations outright.  Have a good faith dialogue with the employee.  The EEOC and courts want to see you engage in an “interactive process.”
  • Document discussions and other communications relating to the process.
  • Before taking adverse action against someone who has requested an accommodation, step back and review the facts to make sure retaliation is not in play (better yet, check with counsel).


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Sixth Circuit case emphasizes importance of temporal proximity in retaliation cases

For an employee to prove she was retaliated against, she must show she engaged in protected activity (e.g., filing a claim of discrimination with the EEOC), she was subsequently subjected to an adverse employment action, and causation.  The causation part of the test is where temporal proximity (i.e., how quickly did the adverse action happen following the protected activity) comes into play.  Courts have been split on the issue of whether temporal proximity, standing alone, can be enough to send a retaliation claim to jury.  A recent Sixth Circuit case says yes.

In Montell v. Diversified Clinical Services, decided on June 27, 2014, the Sixth Circuit stated “temporal proximity alone can be enough” to establish causation.  In so holding, the court reversed summary judgment for the employer, sending the case to trial.  Keep in mind that retaliation claims before juries have garnered some pretty steep verdicts against employers.  Incidentally, the plaintiff in the Montell case was subjected to an adverse action literally the day after she engaged in protected activity.

Takeaway:  Think “caution” when taking disciplinary or other adverse actions against employees who have recently engaged in protected activity (which includes making requests for accommodations, BTW).  Employees should not be considered untouchable just because they made a complaint of some kind. But at the same time, caution dictates that some thought, documentation, and conversation take place with such employees.



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Federal contractors cannot discriminate based on sexual orientation and gender identity

Yesterday President Obama issued an Executive Order prohibiting discrimination based on sexual orientation and gender identity.  This protection for the LGBT community applies to both the government and to all federal contractors.  Regulations implementing these new requirements will be forthcoming in about three months’ time.  If you do business with the federal government (or if you are part of the federal government), check your anti-discrimination and harassment policies immediately to add these two new protected categories, if they are not already there (many employers voluntarily extend protections to the LGBT community).  Make sure your supervisors and employees are aware of the change.  Consider sending the revised policy out to everyone with a memo explaining the change.

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Investigation don’t: do not promise to release your report

Back in January I blogged about a Minnesota Vikings investigation into allegations made by former player Chris Kluwe that he was let go based on his pro-gay marriage stance (here).  I commended the Vikings for responding swiftly to a blog post by starting an investigation.  Apparently, the Vikings promised to release the report to Kluwe.  They then decided not to release the report, and a settlement between Kluwe and the team has fallen apart.

What’s the lesson?  Don’t make promises you might not be able or willing to keep.  An investigator should never promise a complainant (or any other witness) that the report will be shared.  Quite the opposite – investigation reports are often maintained confidentially.

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The EEOC’s new Enforcement Guidance on Pregnancy Discrimination

Yesterday the EEOC released a new Enforcement Guidance on Pregnancy Discrimination (see here).  The Guidance covers issues ranging from the Pregnancy Discrimination Act’s (“PDA”) application to women with past pregnancies and the potential to become pregnant; the application of Title VII to discrimination based on caregiver responsibilities; and the intersection with the ADA when it comes to the duty to provide reasonable accommodations.

While pregnancy in and of itself is not a “disability” under the ADA, many medical conditions associated with pregnancy are covered.  Thus, employers must be mindful of their duty to engage in the interactive process and provide reasonable accommodations where appropriate.  In its Questions and Answers document that accompanies the new Guidance, the EEOC also states that employers are required to provide light duty work for pregnant employees, if they provide light duty for non-pregnant employees.  The agency elaborates that “An employer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries” (emphasis added).

I’ll be blogging more about the new Guidance, but it’s worth your time in checking it out.


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An NLRB Update

A couple of weeks ago the U.S. Supreme Court decided the Noel Canning case, which undid a slew of NLRB decisions (I blogged about it here).  How is the NLRB responding?  The Board’s general counsel gave some answers in an American Bar Association webinar last week.  While the cases decided by the improperly constituted Board do not have precedential value (meaning the Board cannot rely on them in future cases), the reasoning behind those cases still stands and should be considered persuasive in future cases before the Board.  In other words, employers can expect the NLRB to maintain its positions on issues pertaining to non-union workplaces, including social media policies.  Thus, while the Noel Canning decision was huge news, the Board intends to aggressively pursue its agenda of enforcing NLRA rights in all workplaces.

In the meantime, President Obama has renominated an NLRB candidate who was nixed by the Supreme Court in Noel Canning.


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Two tips for managing employee performance issues

For business owners, HR professionals and managers, dealing with employee performance issues is an inevitable part of the job.  There are two guiding principles to follow when it comes to managing employee performance: communication and documentation.  They are fairly simple concepts, but the hard part is putting them into practice consistently.

Communication:  If an employee is not meeting your legitimate performance expectations, let him or her know.  Even if you think the lapses are beyond obvious, don’t expect your employees to be mind readers.  In fairness to them, they can’t improve if they don’t know they’re not meeting your standards.  Also, open communication prevents (or at least mitigates) an employee from later claiming the performance issue was just a pretext for some unlawful motive, like discrimination.

Documentation:  Anytime you have a conversation with an employee about a performance issue, put it in writing.  It does not need to be a formal part of the personnel file (though sometimes it will be).  But it should be clear and concise so that if a judge or jury were somehow looking at it down the line, they would understand what the issue was and your need to address it.

These two tips can save employers time, money and stress down the road.  But they can’t work if your managers aren’t trained on them.



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Remember the case of the employee fired for stealing a bag of chips?

Back in May I blogged about an employee who was fired for stealing a bag of chips from Walgreens.  The employee was a diabetic who typically carried around candy in case she suffered a drop in blood sugar.  On one occasion she started to shake and sweat, a sure sign she needed to ingest some sugar.  But she had none on hand.  She took a bag of chips (valued at $1.39) and tried to pay for it, but no one was at the register.  Thus, she went about her duties and forgot about the chips.  When Walgreens discovered the “theft,” it fired her.  An EEOC-initiated lawsuit followed, alleging Walgreens violated the ADA by failing to accommodate the petty theft.  The case was set for trial after the court denied Walgreens’s motion for summary judgment.

Last week the EEOC obtained a settlement of $180,000 with Walgreens.  In addition, Walgreens agreed to provide training to employees on the ADA and reasonable accommodations.  The EEOC attorney captured the agency’s view of the matter, stating “[p]eople may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack.”  Framed this way, the outcome seems pretty darn reasonable.

What’s the moral of this story?  Make sure all managers understand their duties when it comes to reasonable accommodations.  Consider having a centralized decision-making process for accommodation issues.  And above all, be reasonable.


Bag of Potato Chips


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Breaking news: US Supreme Court decision throws thousands of NLRB decisions into question

Many of us HR and employment law types have been waiting for the Supreme Court’s decision in the Noel Canning case, in which the D.C. Circuit Court of Appeals help that President Obama’s January 2012 recess appointments to the National Labor Relations Board were improper (not because recess appointments are improper in general, but because Congress was not actually in “recess” when the appointments were made).  The Supreme Court upheld that decision today.

This is huge news.  It almost certainly means that thousands of Board decisions over the past couple of years are invalid.  The NLRB’s activist stance in inserting itself into all workplaces, not just unionized ones, has been the subject of much commentary and criticism, including on this blog.  What does this mean for employers?  Stay tuned.

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Have you conducted a wage and hour audit recently?

If not, now would be a good time.  FLSA suits are at an all-time high, according to the Federal Judicial Center.  What does a wage and hour audit entail?  Primarily, reviewing employee classifications of exempt and non-exempt employees.  And then fixing the mistakes you are bound to uncover.  Inadvertent misclassifications are rampant.  It’s almost impossible for employers to get this right, as the legal standards can be nebulous.  The liability, though, can be astronomical.

So what are you waiting for?

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What happens when a CEO lets an employee post naked pictures of a former employe who sued him for harassment?

He’s out, especially if his name is Dov Charney and he founded American Apparel.  According to a workplace investigation commissioned by the company’s Board of Directors, Charney knew about the employee’s intent to post naked pictures of a former female employee who happened to sue Charney in 2011, claiming he forced her to have sex over a several month period.  Though Charney did not himself post the pictures, his acquiescence in the matter was enough for the Board, who fired him last week.  (The investigation also uncovered misuse of company funds, adding to the Board’s upset).

The takeaway is simple: Social media and sex don’t mix, especially when it comes to work.

dov charney

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Do your managers know the rules on third party harassment?

If not, it may be time for some training.  The basic rule is that an employer has a legal obligation to protect its employees from harassing behavior from anyone, even third parties such as customers and vendors.  If an employer knows (or should know) about such conduct, it must take some action.  The appropriate action will depend on the circumstances, but some options include banning the third party from interacting with employees, shielding the particular employee from the offender, and speaking to the third party.  The standard is that the employer’s reaction should be “reasonably calculated to end the harassment.”  And with all harassment issues, the employer’s response must be prompt.

A recent Fourth Circuit case illustrates the point nicely.  The plaintiff customer service representative had to interact almost daily with an outside sales representative.  The sales rep repeatedly engaged in inappropriate conduct to the plaintiff, including making comments about women with whom he had sex, showing the plaintiff pictures of naked women, and referring to the plaintiff (who is African American) as a “black bitch.”  The plaintiff’s supervisor heard this last comment and the plaintiff complained to her about it.  The supervisor’s responded that the sales rep was, indeed, a jerk but “I don’t think he will do it again.”  When the plaintiff complained to her supervisor about the sales rep on another occasion the supervisor rolled her eyes and shook her head.  But she did not take any action to stop the harassment.

THIS WAS THE BIG MISTAKE – Once the supervisor was on notice of harassing conduct towards her employee, she had a duty to report and take action.  She should have gone to HR, but she didn’t.  When the plaintiff herself eventually went to HR, the sales rep was prohibited from interacting with the plaintiff.  The problem, though, was that this action did not occur for about three years after the plaintiff initially complained to her supervisor.  That is not what the courts mean when they use the word “prompt.”

Thus, the case will move forward to a jury trial.  This could have been easily avoided had the supervisor understood her responsibilities.

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Religious accommodations: not necessarily the accommodation of the employee’s choice

The duty to reasonably accommodate religious beliefs does not mean the employer must accept the employee’s proposed accommodation.  A recent Eleventh Circuit case makes this point.  In Telfair v. Fed Ex, the plaintiffs were Jehovah’s Witnesses.  Their work schedule changed from  Monday through Friday to Tuesday through Saturday.  Because this change conflicted with their Saturday religious obligations, they offered to work Tuesday through Friday.  The employer said no but offered them different Monday through Friday positions, though at a lower pay rate.  They plaintiffs refused.  The employer suggested they take a 90 days leave to apply for other positions that would accommodate their religious obligations; again the plaintiffs refused.  They were subsequently terminated.

The employer fulfilled its obligation to reasonably accommodate, held the court, even though it did not grant the request to not work Saturdays in the plaintiff’s current job.  The court was persuaded by the fact that the employer offered alternatives and tried to work with the plaintiffs.

Courts want to see employers trying to work with employees on accommodation issues.  Make sure your managers understand this, and who to reach out to in the event of a religious accommodation request.


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Decision-maker’s ageist remark leads to jury trial, despite evidence that the employment action had nothing to do with age

Earlier this month the D.C. Circuit Court of Appeals sent an age discrimination case to a jury, despite the fact that the employer had a legitimate, non-dscriminatory reason for its employment action.  Why is this significant?  A jury trial can be a scary proposition, as juries have awarded large verdicts and tend to be very unpredictable.

In Wilson v. Cox, the 69 year old security guard plaintiff worked at a retirement home for about a year before his position was eliminated.  The employer’s Chief Operating Officer (COO) made a couple of remarks to and about the plaintiff around the time of the position elimination.  He stated the plaintiff “didn’t come here to work, you came here to retire.”  He also referred to plaintiff and other older guards being prone to falling asleep on the job.

When the plaintiff sued, the district court tossed the case out on summary judgment, holding there was a legitimate reason for the position elimination (saving money).  The age-related comments were, per the court, simply commentaries on the plaintiff’s performance.  The D.C. Circuit reversed the case, and it will now head to a jury trial.

According to the appeals court, the age-related comments were evidence of age bias – exactly the type Congress sought to eliminate in passing the ADEA.  Based on those statements, it is for a jury to decide, not a judge, whether discrimination motivated the position elimination.

Takeaway: Make sure all decision-makers know how dangerous age (or any protected category) related comments are.  If a position needs to be eliminated, or any other employment action needs to be taken, it should not be shadowed by off the cuff remarks that could evince discrimination.



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Leaves of absence under the ADA: how long is long enough?

The ADA requires employers to provide reasonable accommodations, including leaves of absence, to qualified individuals with disabilities unless doing so would result in an undue hardship.  A question employers repeatedly struggle with is, how long is long enough?  According to a recent Tenth Circuit decision, six months, generally speaking.

In Hwang v. Kansas State Univ., the plaintiff sought and received a six month leave of absence.  Thereafter, per her doctor’s advice, she requested additional time off.  The employer denied the request and terminated her employment, applying a policy that provided for a maximum of six months leave in all cases.  When the plaintiff sued under the Rehabilitation Act (which basically tracks the ADA for entities that receive federal funding), the court held the initial six month leave was all the employer needed to do to fulfill its duty to provide a reasonable accommodation.

The following idea was central to the court’s holding: “After all, reasonable accommodations – typically things like adding ramps or allowing more flexible working hours – are all about enabling employees to work, not to not work.” (emphasis added)

While the case provides some useful guidance for employers struggling with the question of how long is long enough, please remember a few key points when it comes to accommodating employees with leaves of absence:

  • “No fault” attendance policies or inflexible leave policies are still pretty risky, just ask the EEOC.
  • The employer’s obligation is to engage in the “interactive process” with the employee in question — that means have a genuine dialogue.
  • Before terminating an employee with a disability on a leave of absence, consider consulting with counsel.
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Employer to applicant: “Come back after you had the baby”

Can you guess what happened?  An EEOC lawsuit followed by a settlement, that’s what.  A Chick-fil-A franchise owner interviewed a pregnant applicant.  He asked her all kinds of questions about her pregnancy, didn’t hire her, but told her to come back and talk to him after she had the baby.  RUH ROH.  This is a classic example of what not to do when dealing with a pregnant applicant.

Learning points/reminders:

1.  Applicants are covered by the anti-discrimination laws, just like employees.

2.  Pregnant employees/applicants cannot be treated any differently than others, even if they come to you nine months pregnant!


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The latest NLRB craziness: swearing at your boss is “protected activity”?!

Nick Aguirre was a car salesman in Arizona.  He met with two managers and the dealership’s owner to voice his concerns over wages, commissions, and break times.  When the owner told him that if he did not like the conditions he could find work elsewhere, Mr. Aguirre unleashed a string of obscenities at his superiors (including a few f-bombs and an a-hole).  Not surprisingly, he was fired.  Earlier this week, the NLRB ordered Mr. Aguirre reinstated.

According to the 2-1 ruling by the Board, Mr. Aguirre is entitled to the protections of the NLRA notwithstanding his behavior, because he was discussing working conditions and was responding to “extremely provocative acts” by the owner.  The Board further noted Mr. Aguirre did not touch anyone during his outburst, nor did he threaten to physically harm anyone.  The dissenting Board member pointed out that the decision implies “that the Act mandates tolerance of [misbehavior] whenever it is connected to protected activity.”

This decision is pretty much the height of ridiculousness IMO.

So what is a proactive employer to do in response?  Not much.  It’s always wise to check with counsel before terminating someone.  Or have your seasoned HR professional do a risk assessment.  But I don’t believe employers should feel hamstrung by employees who engage in  insubordinate, disrespectful behavior.  Sometimes, the lesser of two evils is the better choice (firing the offender and risking the wrath of the NLRB versus letting a cursing employee run roughshod over an organization).


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Do Ohio employers have to provide breaks for non-exempt employees?

No.  There is no requirement under either federal or state law that requires employers to provide break periods (except for minors).  However, most employers do provide breaks for non-exempt workers.  Is this a good idea?  Absolutely – why not give people some time to recharge, fuel up, and relax.  We’re people, not computers.  Assuming you do provide breaks, there are a few rules you need to know.  If a break is 20 minutes or less, it needs to be paid.  If a break is over 20 minutes, it can be unpaid so long as employees are free to leave the premises and do not do any work during the break.  If an employee works during a break, though, they must be paid.


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Avoiding claims for assault and battery in the workplace

There has been an increase in state law claims for assault and battery in the workplace.  Employers should understand these claims and know how to best avoid them.  Civil assault is generally defined as an incident where a person shows an intent to harm another, and the “victim” believes that s/he will be hurt.  No actual physical contact is necessary for a civil assault claim.  Because of the fact-intensive nature of this claim, it is a hard one for an employer to win on summary judgment.  So too with civil claims for battery, which is generally defined as some kind of offensive touching of another person.  It is easy to imagine how this kind of claim could arise in the workplace.

What should HR do?  Be aware of these types of claims and be sensitive to situations that could implicate them.  For example, an employee complains she was afraid her manager was going to hit her.  Or she complains a manager actually touched her in a way she found offensive (picture a light jab to the shoulder).  If these situations arise, investigate them and take appropriate disciplinary action.  In other words, treat them the way you would a harassment or discrimination complaint.

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