What do Clarence Thomas, a bunch of sailors at a Tailhook convention, Bill Clinton, Bob Packwood and, now, David Letterman, all have in common? The inability to keep their sex lives out of the workplace or the news.1 So while each of these examples involved work-related conduct that could readily have (or actually did) result in employment lawsuits for sexual harassment, they’re not alone in the stupidity of their conduct.
Average Americans, free of the daily scrutiny of paparazzi and increased voyeurism of our citizenry, apparently engage in moronic behavior every day. That behavior sometimes ends up involved in litigation and, as a result, published in the daily updates of new court decisions I’ve been sentenced to read as result of my choice of profession.2 Other times—and despite the lack of notoriety—it ends up being circulated in stories on the Internet.
Either way, it’s that time of year when I review the year’s occurrences in the field of labor and employment law. And as I’ve been doing this in preparation for speaking on the subject, it occurred to me that someone needs to do the employment law version of “the Darwin Awards,” because when you read about some of the conduct people engage in at work, you wonder how they had the brains to survive long enough to get a job in the first place. Fortunately, there’s a lot you can learn from others’ ridiculous follies, so here goes:
Top 10 reasons not to sleep with a bunch of your staff members. Thank you, Mr. Letterman, for adding to the list of reasons not to engage in affairs (or even non-adulterous romance) in the workplace. Putting aside the standard reasons for refrain (see “Hot for…Coworker?” February 2008), such as harassment suits, employee morale issues, etc., our late night friend has now added “extortion” to the list—and I’m not talking about the “legal extortion” that many employers consider lawsuits to be. I’m talking about the old style, real life “pay me or I’ll expose you” extortion. Moral of the story: If the fact you’re married is an insufficient reason not to sleep with your employees, money and fame make you an even bigger target when indiscretion sets in. Especially repeated, numerous indiscretions.3
Spying is bad. Porn in the workplace is never a good idea (from a legal perspective—unless of course, you’re Larry Flynt, in which case it appears to be a good and profitable venture). But when you think someone is using your computers to access pornography, it’s also not a good idea to install hidden cameras in a private office without telling the people in the office (who you don’t suspect as the culprits) about it. Because, when the office’s occupants find out there’s been a video camera in there (where they apparently sometimes change their clothes), you’re gonna get sued. And when it turns out your IT and company property policy didn’t include a disclosure that you just might one day install hidden cameras, you could lose a case for invasion of privacy. Moral of the story: Talk to a lawyer before installing hidden cameras in a private office.
Oops—I “replied” to the wrong person. The second place award of worst workplace offender goes to the perpetrator of a simple act that could so easily affect any of us. Any of us, that is, who write discriminatory email messages without checking to see who it’s being sent to!4 This guy received an application for employment via email. Intending to forward it to someone in the company, the gentleman wrote an email indicating that the applicant was just some “old” person who was probably just looking for anything to do. It wasn’t until after hitting the “send” button (and receiving the age discrimination lawsuit), that the author must have realized he’d “replied” to the original sender instead of forwarding it to someone else (who, ostensibly was younger).5 Moral of the story: Don’t write discriminatory emails.
But I don’t even play cards! My top nomination for idiot employee of the year, however, would be for the CEO of Verity, Inc., who thought it would be funny to refer to an employee as “Rain Man.” The problem was, however, that the employee suffered from Asberger’s syndrome. And when “rain man” got turned down for a promotion, he did what all good Californians do—he sued, alleging disability discrimination and using the “rain man” comments as evidence that the CEO perceived him as being disabled. For a number of legal reasons that I won’t bore you with, the company ultimately prevailed in the litigation (which involved trial court and appellate proceedings). Moral of the story: Winning isn’t everything. Avoiding the lawsuit in this case would have required only that a high-level employee refrain from an offensive nickname.
1 In the case of Bill Clinton, he suffers from what I call “stupid with a prior,” having had his sex life tied to work and in the news on more than one occasion. Elliot Spitzer barely avoided this list, as it appears his call girl held no position with the governor’s staff.
2 A choice made completely due to a complete and utter lack of otherwise marketable skills.
3 Out of curiosity—where did he find the time? Maintaining one relationship is trouble enough, but a number of adulterous affairs at work simultaneously? That takes coordination.
4 I, for one, always double check before sending a discriminatory message.
5 But with this guy, who knows.
