Thursday, October 11, 2012

Harmless Horseplay? Maybe Not

In my opinion - even in this age of awareness - there are an alarming number of harassment and discrimination lawsuits being filed against car dealerships. “What? In this day and age? Sorry Jim, that’s a thing of the past – everyone has policies against harassment these days”.

I wish I could agree, but all you have to do is Google “auto dealer harassment” to see that I’m not delusional (although, it’s been known to happen).

It doesn’t help that car dealerships are a favorite target of government regulators (and of course, employment attorneys). For instance, EEOC Acting Chairman Stuart J. Ishimaru said in a statement that "sexual harassment and sex discrimination against women in traditionally male-dominated industries, such as the auto industry, are still unfortunate realities”.  In another statement, EEOC regional attorney John Hendrickson said that it was “amazing that at a time when the auto industry is struggling for survival and women exercise so much influence in the marketplace that anyone would in engage in sexual harassment or show contempt for female customers.” 

See what I’m saying?

It’s not just sexual harassment either. Federal and state laws and court decisions indicate that conduct can become illegal when an employer, supervisor, co-worker, customer, or vendor engages in unwelcome verbal or physical conduct against a person because of their race, color, creed, ancestry, national origin, citizenship, religion, age (40 and over), disability (mental or physical), sex (whether or not of a sexual nature and including same-gender harassment and gender identity harassment), arrest or conviction record, marital status, sexual orientation, retaliation or military status. In the month of August 2012 alone, I found news stories for dealership cases involving national origin discrimination, sexual harassment, racism, retaliation, and same-gender harassment.

Having spent many years as a dealership employee, I’ve come to believe that one of the reasons why our industry is so frequently targeted is because of the long-standing dealership culture itself. Let’s face it – car folks tend to be bold, aggressive, competitive, high-spirited – you name it.  Conduct that may be considered to be harassment or discrimination is sometimes so commonplace in dealership environments that people often don’t recognize the behavior as being inappropriate.

Think about it - have you ever witnessed dealer personnel swapping dirty or ethnic jokes or perhaps badgering a co-worker with sexual innuendo? How about inappropriate material being emailed or displayed on computers and mobile devices? Perhaps you’ve noticed that high-performing individuals are given a bit more slack when it comes to their behavior? Have you ever witnessed a supervisor either ignore potentially harassing behavior by a subordinate or just lightheartedly suggest that they be careful what they say?

Unfortunately, many companies have found out the hard way that “just kidding around” with no harm intended is not a viable defense. As far as the law is concerned, harassment depends on how the conduct was received, not on the intent. According to Robert A. Canino, Regional Attorney of the Dallas District Office of the EEOC, "An employer should never assume that it can hide behind a 'horseplay' defense. To do so is to trivialize what can be offensive and degrading conduct toward employees who don't find it amusing. There is no free pass for employers who fail to prevent or correct such offenses on the stereotypical premise that 'boys will be boys'."

Here’s another reality: employees that may actively participate in the “horseplay” or staff members that seem to have no problem with business as usual can become a dealership’s worst nightmare sometime in the future – especially if their employment is terminated. There are a number of savvy attorneys who are ready, willing, and able to assist disgruntled employees with harassment/discrimination claims.

Perhaps many of these claims are frivolous. But whether an accusation has merit or not, the dealer typically loses. Any lawsuit is a bad lawsuit. Besides the cost of defending these claims, there will likely be immeasurable damage to a company’s reputation.  What owner wants the public to be exposed to media stories accusing their dealership of employing harassers or racists?

So what’s the answer? Most dealerships have an anti-harassment policy that all employees must sign, and that’s a great first step, but the questions remain: Have the employees actually read the policy and do they really understand it? Are they really aware of the procedures set forth in the policy to protect them from harassment? Are supervisors consistently enforcing these policies?

Having a policy in place and hanging posters is simply not enough protection for a dealership nowadays. Training dealership personnel in harassment prevention and holding them accountable for proper behavior is no longer an option.  Employees who receive harassment training are more likely to understand that there are boundaries that must be observed in the workplace and more importantly, realize that there can be serious personal consequences for harassment.
If a comprehensive harassment prevention program hasn’t been a priority in your dealership, I suggest that it’s time to get serious.


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