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Your Employee Matters


By Your Employee Matters

There’s an axiom among lawyers that “bad cases make for bad law.” What follows is one of those cases.

The plaintiff, Miguel Arrieta-Colon, sued Wal-Mart and a handful of his supervisors and managers because he was ridiculed after receiving a penile implant used to correct a sexual dysfunction. Apparently the implant itself left the plaintiff with the appearance of a semi-erection.

The plaintiff alleged that he was subject to a hostile work environment because he was constantly harassed and ridiculed by both supervisors and co-workers and, despite his complaints, no corrective actions were taken. The jury eventually awarded $76,000 in compensatory damages and $160,000 in punitive damages because Arrieta-Colon had to quit in light of the harassment.

This decision raises three important points:

  1. The defense attorneys blew the opportunity to argue whether or not the plaintiff had an actual disability or met the “regarded as” test under the ADA. Because the attorneys failed to use this argument on appeal the court could not consider it.
  2. The plaintiff was able to move forward with a constructive discharge case because Wal-Mart failed to take any action to prevent his harassment.
  3. Punitive damages were awarded against Wal-Mart in large part because its human resource officer took the position that “boys will be boys” and didn’t interfere with the actions taken by the store’s management.

You can read the case by clicking here.


By Your Employee Matters

The other day, I suffered from a retail experience that we’ve all encountered. I was at the counter ready to check out and there were two management types behind the counter “busy doing things,” as they were trying to find another clerk to write me up. It literally took a PA announcement and then another minute or so to get someone behind the counter.

I don’t know about you, but if I were the owner of that store and watched this going on, I would be horrified. The most important thing to that store’s survival — its customer, willing to spend money now — was completely ignored by two able-bodied employees. I don’t care what they were doing. I don’t care what their title was. They should have stopped and gone to the counter. Everything else that business does is secondary. As you can imagine, I have no desire to ever shop at that store again.

As Dr. Deming was fond of saying, “Management tends to recycle ignorance.” This experience is a classic example of what he meant. How can employees possibly know how to do better when management doesn’t know to do better?

Unfortunately, much of the same type of thing goes on in HR. Instead of focusing on the strength of the personnel relationship, we build up a lot of administration around it — our own little bureaucracies — with the same horrible consequences. Do your HR managers focus on their “busyness” at the expense of what’s really important? Take a look at this month’s Form of the Month: The 12-Question Survey. I’d be curious to see how your HR person would answer it.