Geez! What’s gotten into me this week? Even by The Employer Handbook editorial standards, which are lower than Title VII’s religious accommodation undue hardship test.
[I’ll be here all week. Sorry.]
First, a 1000+ word blog post on ADA telework, followed by two cheeky posts on bad interview questions and the FMLA. So, naturally, this builds up to a Thursday post about oral.
As I resist every urge to cheapen this further by resorting to silly puns and other double entendre, allow me to set the stage for you:
From accommodation to investigation.
The plaintiff was an auto technician in the vehicle install bay at a large electronics store. According to the court’s opinion, he was familiar with the store’s zero tolerance policy for sexual harassment. Through his doctor, the plaintiff, who had narcolepsy and cataplexy, requested no shift work. With one scheduling exception, the store accommodated him.
About a year later, one of the plaintiff’s female co-workers accused him of sexual harassment. The allegations revolved around comments from the plaintiff regarding the victim and the act of stimulating a man’s penis with the mouth for sexual pleasure. After HR received the complaint, it investigated further, found plenty of corroboration, and determined that the plaintiff had violated the store’s sexual harassment policy. Shortly thereafter, the plaintiff was fired.
He then sued, claiming a violation of the Americans with Disabilities Act. Because, of course.
No pretext here.
Predictably, in its opinion, the federal court didn’t see eye to eye with the once-represented, but eventually pro se, plaintiff:
As [plaintiff] conceded during his deposition, conduct constituting sexual harassment was a violation of [defendant’s] personnel policies. In addition to denying the allegations, [plaintiff] testified that he believed that his co-workers fabricated the allegations of sexual harassment against him because they blamed him for getting a co-worker fired. Even if [plaintiff’s] suspicion were true, he cannot defeat [defendant’s] motion for summary judgment as long as his employer had an honest belief in its proffered nondiscriminatory reason.
Takeaway for employers.
As I like to emphasize during training sessions, an employee complaint about discrimination in the workplace, an accommodation request, or any other protected activity does not bulletproof the complainant from discipline for work rules violations. This is an extreme example, but, even in closer calls, employers should resist the urge to excuse employees who violate work rules. Indeed, by cutting employees slack, employers actually open themselves up to disparate treatment claims.
So, enforce your work rules evenly. And, unless you operate in the adult film industry, don’t tolerate oral sex talk at work.