December 2016, Auto Dealer Today - Feature
Sexual harassment is understood to be a widespread problem generally, and at dealerships particularly. But out of sight, out of mind — I hadn’t given it much thought until I got involved in one dealership’s legal woes recently. It turns out a manager was having sex with an hourly employee. At the dealership. Recorded in digital clarity by the dealership’s security cameras. Even more disturbing was the general manager’s reaction: “So what?”
Really? Cue the “Seinfeld” episode in which George Costanza asks, “Was that wrong? Should I not have done that?”
The offending manager eventually got fired. The GM’s attitude may take a little more effort to change. And so, for the George Costanzas of the dealership world who haven’t yet gotten the memo, here is a brief primer on sexual harassment and why it has no place at your dealership.
You Can’t Plead Ignorance
Sexual harassment can take many forms, including unwelcome sexual advances, requests for sexual favors, and other sexually-related conduct. It is harassment if submission to sexual conduct is made a term of employment. This is called “quid pro quo” harassment.
Quid pro quo sexual harassment occurs when a supervisor conditions an employment benefit on an employee’s engaging in sexual behavior. An employment benefit or “tangible economic action” could include a raise if the employee goes along with the sexual conduct or being fired if the sexual conduct is refused.
Asserting that the victim of harassment was a willing participant in the sexual activity won’t help. The difference in relative power between the harasser and the victim makes this a weak and ineffective defense.
Sexual harassment also exists if the sexual conduct unreasonably interferes with the victim’s work performance or creates an intimidating or offensive working environment. This is often called “hostile environment” harassment, and sexual activity can be an extreme form of harassment.
Sexual harassment includes the following kinds of conduct:
- Sexual jokes, whether spoken on the job or forwarded through emails or faxes
- Sexually explicit images or music
- Vulgarity which interferes with job performance
- Indecent exposure or improper touching
- Abusive language, including the use of vulgar nicknames
- Continuing to ask a coworker or subordinate for a date after refusals
Hostile environments can be created by managers and supervisors, coworkers, vendors, customers, or other nonemployees. Regular instances of the type of conduct described above can create a hostile environment, even when the conduct is directed to no one person in particular.
Often, cases of sexual discrimination involve allegations of both quid pro quo and hostile work environment. For example, a supervisor may persistently request sex from a subordinate, who consistently refuses. Once the supervisor gets the hint, a campaign ensues to force the victim to voluntarily quit the dealership.
In one case, a female salesperson who refused the sexual advances of the sales manager was “boxed out,” that is, other sales associates took every “up” and prevented her from engaging any customers. It’s hard to make a living that way. She sued and won.
Harassment may also be committed by nonemployees. Consider the example of an outside trainer who conducts sessions in your dealership and fills his lectures with sexually degrading comments directed toward women. A situation like this should be brought to the immediate attention of the dealer, a manager or HR.
“Intolerable working conditions” that would compel a reasonable person to quit can also be a form of harassment. Having sexually suggestive calendars or pulling up porn on dealership computers may constitute this condition. It is not a defense to keep the calendar or pictures in your desk drawer or have the computer porn only available with your password.
These types of conduct have no place at your dealership. Engaging in this type of behavior can result in your being disciplined or terminated as an employee or sued as a manager or owner. It cannot be stressed enough that this type of behavior is unacceptable.
Treat every coworker, subordinate, vendor and customer with respect and dignity. This will avoid even the appearance of sexual harassment and enhance your dealership’s reputation for professionalism and excellence. If anyone becomes aware of or suspects any form of sexual harassment at the dealership, they should immediately report it to management. And of course, you should never engage in any such conduct yourself.
Yes, George, that’s wrong.
James S. Ganther Esq. is the co-founder and CEO of Mosaic Compliance Services. He is a dealer compliance expert and a prolific writer and speaker. Email him at [email protected]