Training Bosses About Bias, Retaliation, Leave Limits Liability

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By Paul Stinson

Employers that don’t train supervisors about discrimination, harassment and retaliation could find themselves in court, an employment lawyer warned.

Also emerging as a hot topic is what’s reasonable in accommodating employees who request intermittent Family and Medical Leave Act leave, Stefan A. Mecke, an attorney at Tulsa, Okla.-based Barber & Bartz, said.

“A lot of my employers ask a lot of questions about this and it’s happening a lot of places right now,” he said. “That’s a big area of discussion right now.”

Mecke was speaking April 5 at sessions of the Oklahoma Office of Civil Rights Enforcement’s Employment Law Conference in Tulsa. Other sessions covered the increasing awareness of sexual harassment in the wake of allegations against Fox News and changes in states’ enforcement of worker rights in response to a dramatically different White House.

“It’s not the initial harassment or discrimination, it’s how it’s handled and then how the employee is handled,” Mecke told Bloomberg BNA after the session. And if that’s mismanaged, it can appear to be retaliation, Mecke said.

A supervisor behaving in a cold or distant manner to an employee following a complaint about a co-worker exposes the employer to legal danger, he said. And a response of denial along the lines of “oh no, that person’s nice, he would never do that” would also be ill-advised, Mecke said.

“We’re seeing supervisors not aware of the potential liability there,” he said.

“We’re going out to all of our employers right now recommending a three-hour training session for the supervisory staff so that they’re fully aware of all these hot issues, these high-risk areas and giving them tools to handle those situations,” Mecke said.

Watch Out for Falling Rock Stars?

Sexual harassment is on employees’ radar, particularly in light of recent allegations about Fox News, family law and criminal defense attorney Amber Peckio Garrett said at another conference session. Inaction isn’t an option for an employer regardless of any one person’s value to the company, she said.

“If you’re an employer you’ve got to take notice of the bad apples,” she said.

Even if it’s “your prized cow” or “rock star employee” who’s behaving inappropriately, “you can’t stand idly anymore,” Garrett said.

“Especially with Fox News and Bill O’Reilly, they’ve got advertisers now that are pulling their ads because of this scandal, you’ve got big dollars on that,” she said.

“I think if you’re the average employee sitting in your break room and they’ve got the news on, I think it comes to mind that ‘look this is happening. You know what? That made me think so-and-so did that to me the other day,’” said Garrett.

There likely will be more employee awareness of their rights regarding harassment and more willingness to speak up about it, she said.

States Taking Up Enforcement, California Style

Garrett told conference attendees she sees the Trump White House rolling back workplace rights and many states fighting that trend.

“It’s becoming more apparent that the administration is not looking to enforce the regulations they consider Obama-era or employee-protection or things of that nature,” she told Bloomberg BNA after the session.

A very popular term on Twitter these days is “Californiazation,” which refers to California’s fight against Trump policies, Garrett said.

“I think the burden is going to come on the states,” she said. “California just happens to be leading it” with its equal access bathroom bills, she said.

“We’re going to see more states implementing their own regulations and strengthening enforcement because the federal government is not going to do it in this administration,” said Garrett.

“We’ve got states and we’ve got private enforcement actions waiting to take up arms since those Obama-era regs are being rolled back,” said Garrett, pointing to recent action on sexual orientation and bathroom access and the Fair Pay and Safe Workplace regulations.

To contact the reporter on this story: Paul Stinson in Tulsa, Oklahoma at pstinson@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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