I came across an interesting employee relations issue a few months ago. Here’s a quick summary of what happened …
A White female employee made a complaint about her Hispanic male supervisor, claiming he was treating her unfairly and was generally derelict in his duties as a manager. HR investigated the issue but we were unable to substantiate the claim. The supervisor was issued a basic warning, everyone was sent back to work and the supervisor’s supervisor (a Black female over 40 years old) was instructed to keep an eye on both parties.
Within 2 weeks, another complaint was lodged. The Black female over 40 years old called the White female to get the details of the latest complaint against the Hispanic male. A confrontation ensued where the White female used inappropriate and profane language in speaking with the Black female over 40 years old. The White female was suspended pending investigation into the confrontation. A few days later, she was terminated for initiating and escalating the conflict. She later filed claim with the EEOC claiming the Black female over 40 years old terminated lured her into conflict and conspired with HR to terminate her in retaliation for her complaint against the Hispanic male.
Handling employee issues like these often feels like a bad game of Rock – Paper – Scissors …
Most guidance on employee relations teaches us to consider protected class status in our recommendations and decisions on discipline. Right or wrong, we cannot ignore it and honestly claim to be protecting our organizations from separation litigation risk. Adverse action and adverse impact are still very much a real and legitimate problem — and government agencies are still on the lookout for it. We have a responsibility to be both mindful of and able to account for decisions we make that may seem discriminatory.
However, as our workplaces continue to become more diverse, it is rare to encounter an issue where more than one protected class of people isn’t represented. In the example above, there is race, gender and age all in the mix — and I forgot to mention the Hispanic male is also a devout Christian and the Black female over 40 years old is also homosexual. I think that covers just about everything but genetic information!
So what is a HR person to do when everyone in the employee conflict is covered by protected class status?
The answer is the simple:
Consider the policy, past practice and precedents — then do what is in the best interest of the reputation and goals of your organization
To do this, we have to focus on the facts … In our story, the facts are that an employee complained about a supervisor, the investigation was unable to substantiate a violation, appropriate warnings were issued and the employee was later terminated for flagrant insubordination toward a member of management in the process of filing another complaint. With some legal guidance, there is no reason the company cannot successfully defend this decisions.
Don’t get caught in the losing game of HR Rock – Paper – Scissors. When employee conflicts decisions start to look confusing and difficult, that’s the time for HR to keep it simple and be decisive. It is not the time for games.