FCPA Compliance and Ethics Blog

February 14, 2014

Tales from the Crypt-Rule No. 1 ‘Nothing is as it Seems’

Tales from the CryptEd. Note-today we begin a series by a couple of anonymous compliance practitioners who will write about some of the real world experiences that they have encountered. I hope that you will not only enjoy but find useful in addressing some compliance and ethics issues that you may face in your job.

Tales From the Crypt: Tough Choices for Tough Cookies

Tough Cookie 1 has spent the more than half of her 20+ legal career working in the Integrity and Compliance field, and has been the architect of award-winning and effective ethics and compliance programs at both publicly traded and privately held companies.  Tough Cookie 2 is a Certified Internal Auditor and CPA who has faced ethical and compliance challenges in a variety of industries and geographies and recently led a global internal audit team. Our series “Tales from the Crypt: Tough Choices for Tough Cookies” are drawn largely from real life experiences on the front line of working in Integrity & Compliance, and personal details have been scrubbed to protect, well, you know, just about everyone…

Nothing is as it Seems

Fans of the hit show NCIS know that Agent Gibbs has countless “rules of engagement” from “Rule # 11 – let it go when the case is closed” to “Rule #5 – don’t get personally involved.”  The following scenario  leverages Rule #1 in the Integrity & Compliance field – Nothing, absolutely nothing, is as it seems.

Whether new to the field (a “probie”) or a seasoned veteran to Integrity & Compliance, you’ll agree that you quickly learn that there are at least three sides to every story (even if there are only 2 “players”), and it is your job to be politically savvy enough to uncover hidden agendas, and rapidly become not only a highly skilled listener, but also be part cop, part advocate, part HR professional, all rolled into one.  I often tell people that 80-90% of what I do boils down to common sense paired with great communication skills. Good communicators understand the needs of and cater their communications to their audience.

The following tale from our crypt is about harassment, and how good communication skills are critical to avoiding harassment in the workplace.  Simplified to its basest element, harassment truly is in the eye of the beholder – what might offend one person won’t offend another.  It’s the actor’s duty to ensure that he or she is aware of their audience, and doesn’t cross the line in word or deed to offend or cause undue stress.  In other words, cater your words and deeds to your audience, intended or otherwise, with sincerity and respect, and the battle is nearly won.  In the legal sense of harassment, the “eggshell plaintiff” rule is the perfect analogy   – it doesn’t matter if the kick to the leg (conduct) was a mere tap that wouldn’t even bruise someone else.  If the person receiving the kick has a weakness in their leg (perceives harassment) that causes it to break (feels victimized – the eggshell plaintiff), the kicker has a duty to make amends.  In the corporate world, it’s also the supervisor’s duty to take proactive steps to prevent reoccurrence if someone does cross the line, and cultivate a sincere desire to respect others in the workplace.

I recall an incident that took place at a factory – the helpline call came in, indicating that a certain fellow was “incessantly harassing” the caller during her shift (second), and she was requesting that his shift be changed to third shift so she could avoid being harassed any further.

Fact 1: the caller was a woman (side 1)

Fact 2: the implicated party was a man (side 2)

Fact 3: the two parties worked second shift (undisputed common ground)

Everything else in the call gives rise to the “third” side of the story.  We proceeded with our investigation, as the caller was “generous” enough to provide her identity as well as the alleged harasser’s identity.  Our first order of business, of course, was to interview both parties.  The caller was interviewed first. Her story was one of his relentless harassment, from daily cat calls to interrupt her work, leaving suggestive notes at her work station, removing and not replacing her critical tools, and spoiling her lunch by pouring soda in her lunch box.  We asked her if there was anyone who could verify her claims, witnesses to the incidents she described.  Her response was “no, he always does things to me when no one else is around to witness them.”

We then interviewed the implicated party – the man.  We first asked him to describe, in his own words, his “relationship” with the caller, after advising him that a helpline call came in implicating himself and the caller (without telling him the nature of the complaints).  His proceeded to break down in front of us, visibly relieved at the opportunity to speak, and commenced to reveal a story of a whole year of terrorization by the caller against him, since the day he started working at the factory.  We learned from him that the caller had applied for his job but was passed over as unqualified.    He believed that she had been making his life miserable as an act of revenge for the job she coveted and felt she deserved as a tenured employee.  When asked why he never brought it to our attention, he said he felt he had no recourse, since her hostility did not precisely fit the harassment definition in the training he had received in the past year.  He was also embarrassed that he hadn’t been able to handle it quietly on his own.

As we did with the caller, we asked him if there were any witnesses to this behavior, and he referred us to several co-workers who had work stations near his.  We interviewed them as well, and his claims of bullying and hostility were confirmed by every single one, with specific incidents instigated by the caller provided freely by the witnesses.   We advised our victim to make us immediately aware of any subsequent incidents following our interviews.

The challenge is that harassment is usually thought of in terms of prohibited workplace behaviors related to legally “protected classes,” such as race, gender, sexual orientation, ethnicity, religion and the like.  In this case, the gray area is bullying – where a co-worker creates a hostile work environment not based on any protected class under the law or a colleague does and says things interpreted as demeaning and demoralizing without giving rise to legal recourse.  This is where harassment training often falls short, and absolutely needs to rise above the letter of the law and address the spirit of the code of conduct for your organization.  You have to consider the types of behaviors being demonstrated and what they “communicate” to the audience.  If your company values statement includes “respect for people,” as many do, any behaviors that give rise to a hostile work environment, regardless of a protected class or not, are a violation of your company standards and you need to address them as a Key Performance Indicator (“KPI”) for the people involved without delay.  If your values statement does not include “respect for people” and your harassment training does not include situations and scenarios of bullying and hostility, perhaps it’s time you thought about updating them.

Ending workplace bullying is an urgent matter, and the work is never done – you must continually address bullying and hostility on a frequent basis to sensitize your people to your expected standards.  In this instance, the caller clearly was in the wrong, and the implicated party was a victim.  We put the caller on probation, advising her that a repeat occurrence would not be tolerated.  We changed the equipment that she was working on to another station that was on the opposite end of the factory floor, and modified shift breaks and lunchtimes so that neither party would have occasion to cross paths unless done so intentionally.  We refreshed our communications on workplace conduct and respect to include sessions on bullying and hostility that does not fall under a protected class, and we asked the plant manager to speak to it at his next line meeting with all his managers.   We urged our employees to “speak up” and “make the call” if they witnessed activities that they believed demonstrated a lack of respect.  We did everything we thought we needed to do to correct the situation, and validated our response with our more than ample resources, guidelines and legal counsel. 

Done and done? Hardly…  A few weeks later, I saw the HR manager and asked how things were going between the caller and her “victim.”  I was shocked to learn that the victim committed suicide two weeks earlier, apparently because our caller had renewed her bullying with fevered intensity, incensed that she had to learn a new piece of equipment, and couldn’t have her lunchtime with her buddies, “because of him.”   The day following the fellow’s suicide, the caller did not return to work, and our efforts to find her were fruitless as she had moved out of town, with no forwarding address.   I was, to say the least, devastated.  Regardless of the letter of the law, bullying and workplace hostility is something you cannot ignore, and must be addressed without delay.

This publication contains general information only and is based on the experiences and research of the authors. The authors are not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The authors shall not be responsible for any loss sustained by any person or entity that relies on this publication. 

© Thomas R. Fox, 2014

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