Article

Harmless Horseplay is not a Harassment Defense

December 2012, Auto Dealer Today - WebXclusive

by Jim Radogna - Also by this author

 



In my opinion, even in this age of awareness, there are alarming numbers of harassment and discrimination lawsuits being filed against car dealerships. “What?” you may ask yourself. “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 I’m not delusional.

It doesn’t help that car dealerships are a favorite target of government regulators and, of course, employment attorneys. For instance, Stuart J. Ishimaru, then-acting chairman of the Equal Employment Opportunity Commission (EEOC), said in a 2010 public statement following a gender discrimination suit at a Colorado dealership that "sexual harassment and sex discrimination against women in traditionally male-dominated industries, such as the auto industry, are still unfortunate realities.” Following the EEOC filing of an October 2009 lawsuit against a Chicago-area dealer, the commission’s regional attorney, John Hendrickson, said with women’s powerful collective voice in the marketplace three years ago when the automotive industry struggled to survive, it is “amazing” that contempt or sexual harassment would be shown toward 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-plus), 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 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 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 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 e-mailed 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 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 who may actively participate in the “horseplay” or staff members who 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 many savvy attorneys who are ready, willing and able to assist disgruntled employees with harassment and/or discrimination claims.

Perhaps many of these claims are frivolous. But whether an accusation has merit or not, the dealer typically loses. 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 these days. 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 there are boundaries that must be observed in the workplace and, more importantly, realize there can be serious personal consequences for harassment.

If a comprehensive harassment prevention program hasn’t been a priority in your dealership, I suggest it’s time to get serious.

Vol. 9, Issue 10

Comment

  1. 1. Tom Gorham [ December 22, 2012 @ 12:54PM ]

    "car folks tend to be bold, aggressive, competitive, high-spirited ".. These are great attributes when coupled with repect for the feelings of others and appropriate behavior. What your parents may not have taught you, you must learn on your own.

    Great article Jim, as always.

 

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