By Kathleen Jennings (email@example.com)
Even if you did not watch the reboot of the Roseanne show, you are aware that the show was cancelled following a racist Tweet from its star, Roseanne Barr. Although Ms. Barr has a history of bizarre and insensitive behavior, her show was highly rated and popular, so it was somewhat surprising that the network went ahead and cancelled it. The cancellation sends the message that the network is not going to tolerate racist comments or behavior, even from successful “stars.” This could be further fallout from the #metoo movement.
Do you have a “Roseanne” in your workplace? That is the employee who is highly successful, highly productive or maybe a brilliant salesperson, but who also makes offensive comments and/or engages in inappropriate behavior. However, the comments and behavior are tolerated by upper management because nobody wants to run off the guy (or gal) who is a top performer. What could possibly go wrong?
Here’s what could go wrong—a lawsuit or multiple lawsuits from other employees. If your “Roseanne” regularly makes racist, sexist, ageist or other types of remarks that show a discriminatory animus toward employees who are in protected classes, eventually one or more of those offended employees (or more likely, former employees) is going to become fed up and go to the EEOC and then to an attorney to file a lawsuit. What is the company’s defense? That this employee was too successful to discipline or discharge? That is not a defense; it is an invitation for a jury to award punitive damages.
What should the company do? If the company knows (because an employee has complained) or should know (because the behavior is so open and obvious) that an employee is making racist, sexist, ageist, or otherwise discriminatory remarks toward employees, federal law (and some state laws) require the company to take prompt, effective remedial action, regardless of how much money the offender makes for the company. The remedial action must be designed to stop the discriminatory remarks. Keep in mind also that these discriminatory remarks could be used by an employee as evidence of discriminatory animus in a claim that the employee was denied a promotion or raise or was terminated for discriminatory reasons.
The company may be tempted to accept these charges or lawsuits as the cost of doing business and keeping its “Roseanne” around, as long as he or she is making money for the company, balancing the lawsuits costs against the profits generated by the “Roseanne.” The company needs to also factor in non-monetary costs—impact on employee morale that results in excessive employee turnover, increased recruiting and training costs, and loss of valuable talent, as well as the impact on the company’s reputation as a workplace and a brand (especially if “Roseanne” is spouting the epithets to customers and potential customers). Is your “Roseanne” really worth it?
Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at firstname.lastname@example.org.
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