Company loses 75k over manager’s e-mail mistake

April 6, 2009 by
Filed under: Communication, Document retention, Special Report 

gavel

One of the problems with e-mail: A message easily can be misinterpreted and taken out of context. And when it happens to a manager, the repercussions can be serious.

In one recent case, a manager’s comments about a prospective employee got his employer wrapped up in a costly court battle. Here’s what happened:

A pregnant woman was turned down for a job as a casting assistant for a movie production company.

She sued, claiming she was rejected because of her pregnancy. The employer claimed she just wasn’t the most qualified candidate.

Who won the case?

The employer’s defense was sunk by one key piece of evidence: an e-mail from the hiring manager to another employee. In the message, he expressed concern that the applicant would not be able to handle the stress and long hours of the job because she was expecting.

Regardless of the qualifications of the person who was hired, the manager’s e-mail made it tough to ignore his assumptions about the pregnant candidate, and the employer couldn’t prove his decision was unbiased.

The company ended up paying the woman a $75,000 settlement.

Can’t be erased

All managers need to understand the dangers of discussing employment decisions over e-mail, especially those centering on a sensitive topic like in the case above.

E-mails are permanent records. Any relevant messages will always be brought into court in the event an employee or job applicant sues — and they’re often read out of context or interpreted in ways that hurt the employer’s case.

The solution: Train managers to watch what they write and know which conversations to hold in person.

Cite: EEOC v. Crick Pictures, et al.

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Comments

19 Comments on Company loses 75k over manager’s e-mail mistake

  1. Brian on Mon, 6th Apr 2009 2:36 pm

    2. Uh, pardon me. Isn’t the bigger lesson to not make assumptions about what a pregnant woman can or can’t do?

    From the EEOC press release:
    EEOC Regional Attorney John Hendrickson, who oversees all litigation for Chicago District Office, added, “It is just this sort of stereotypical decision making by an employer that is prohibited by federal law, and for good reasons.” Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978.

  2. Perry on Tue, 7th Apr 2009 8:37 am

    3. I liked the article, but that last sentence ruined it.

    Essentially, the courts agreed that this was some sort of sexual discrimination based on pre-existing condition. If indeed this is a valid finding, then the statement to “know which conversations to hold verbally”, implies that you want to continue to discriminate, just don’t do it in email. This is a morally indefensible position.

    Though I know these factors affect business every day, and I certainly also see the side of the employer wanting a candidate most suitable to the position, a better way to choose a candidate would be based on a list of criteria, and a committee selection.

  3. Judy on Tue, 7th Apr 2009 10:34 am

    4. Right on, Brian!

  4. Ann on Tue, 7th Apr 2009 12:14 pm

    5. Agreed! those statements shouldn’t even be thought, let alone communicated or documented. Selection for a role should be based on qualifications, plain and simple. The last sentence, ‘conversations to hold in person’, implies that it’s ok to consider factors such as this-

  5. John on Tue, 7th Apr 2009 12:46 pm

    6. Perry:

    I agree. Unfortunately what happens is we teach ourselves not how to do the right thing but how to do the wrong thing the right way.

  6. George Spelvman on Tue, 7th Apr 2009 3:00 pm

    7. “those statements shouldn’t even be thought …” Oh please. Give me a break. If she would be working long hours and she is sufficiently pregnant she has no business applying for a job that takes a lot of physical effort. Her state of pregnancy IS a potential lack of qualification. Do you people live in the real world? As a hiring manager my responsibility is to ensure the best applicant is selected. If her pregnancy would cause an issue this DOES disqualify her. Speaking from a liability viewpoint what if the employer were sued because of the stress placed on her and the baby? I suppose that would be okay as well.

    The whole world is so politically correct you cannot even use sound judgement and common sense any more. The only mistake the employer made was documenting their concerns via email.

    The last bastion of hope is that there are no thought police.

  7. Kurt on Tue, 7th Apr 2009 4:33 pm

    8. Hello people – the article is about being careful about what is in email because it can be twisted and made to sound like it is more important that it may have been.

    Maybe the author should have picked a better example but the point here isn’t lieing, or hiding wrong thoughts. It is make sure what is in your email won’t get you in trouble even if it is read out of context, twisted, and etc.

  8. Randi G. on Tue, 7th Apr 2009 4:35 pm

    9. While I agree that we all must be careful with e-mails, and should never write anything that we don’t want a judge to see, I also agree that advocating hiding discrimination is the wrong message to send. I agree with John’s phrasing. So let’s just stop doing the wrong thing!

  9. Marie on Wed, 8th Apr 2009 7:04 am

    10. In a discussion however, someone could have effectively destroyed that person’s thought process and corrected the situation. THis may or may not have happened via email–most likely it was a call back to the author indicating that it was inappropriate and illegal to make decisions based on these factors. As the lead in said–this was not in context. Not that it would ahve absovled the co of the issue-but it may have reduced the award.

    Email is dangerous–but it is unrealistic to think that these things do not still come up–good business people attack it and destroy it and make sure that business decisions are made according to sound business and legal practics but you are deluding yourselves to think that this does not happen.

  10. Brian on Wed, 8th Apr 2009 7:15 am

    11. Marie,
    I’m not deluding myself into thinking that it doesn’t happen. I know it does. But the general feeling of the article was “you can think it or talk about it, but don’t email it”. That’s where I had the problem. This manager clearly felt like a pregnant woman could not handle the stress of this job, even though (according to the EEOC press release) her doctor said she could.

    I’m having a hard time seeing how that email could be taken out of context.

  11. Marie on Wed, 8th Apr 2009 9:23 am

    12. The ‘out of context’ part is any response that the HR person sent or the author’s boss sent tell him that in no uncertain terms should her condition be part of the decision making process. Again, not being in the courtroom–this may have been discussed verbally with a document to file on this–and it could ahve reduced the award to 75 from some higher number–but people do say stupid things–and then someone else brings them back to center–who knows why she didn’t get hte job–we don’t know about hte other candidates–but all we have is the one statement–no refuting by the er, no supporting that theory by the er either. So yes, it is out of context and the article author indicated that as well that things do get presented out of context in courtrooms and blown up.

  12. John on Wed, 8th Apr 2009 9:39 am

    13. Maybe I’m missing something. Out of context is irrelevant. If an email, statement, conversation, interview note or any other of a myriad of ways we communicate makes an illegal turn that gives a candidate a prima-facia case for discrimination, ‘context’ will be construed against the person of superior knowledge and responsibility. Court cases turn on a single word all of the time. The issue here is that an inappropriate email was sent that turned into a violation of a person’s Title VII rights. The candidate had a legal right and a personal responsibility to take a stand. The management knew or should have known better than to make such statements. It would seem that the cavalier way the statement was made that this could have been a habit with them that is, until they got bit.

    Yes context can mean something. On the other hand if we use proper procedure being taken out of context is tremendously reduced.

  13. Marie on Wed, 8th Apr 2009 9:59 am

    14. We don’t know that she didn’t get the job because of this. there are no patently illegal questions in interviews–it is what is done with the info afterwards that is illegal.

    In any decision, there is discrimination–some of it is legal–based on job requirements, some of it is illegal-as what appears in this case. However, we do not know why this candidate was not selected–or rather–we do not know why someone else WAS selected–was it a situation of legal or illegal discrimination?

    Yes, it appears this candidate was treated differently becaues of a protected class by the one statement. But was it clear discrimination–without knowing the end result, it is hard to say. The co may have decided not to hire here for qualificatoin reasons, but hired an equally pregnant candidate after disciplining the mgr on his inappropriate behavior and esnuring that all are considred based on the needs of the job and the qualificatoins of the candidate.

  14. John on Wed, 8th Apr 2009 11:26 am

    15. Marie
    “there are no patently illegal questions in interviews”
    _________________________________________

    Marie, there ARE patently illegal questions at interviews, questions that you cannot ask, period. As an example, a person comes in riding a wheel chair for a firefighter’s position. You cannot ask about his disability. You can ask if he can perform the essential job functions and what accommodations are needed to do so. What you do with a patently illegal question compounds the problem not begins the problem.

    The point is we don’t have to know why she was not hired or why another was. The company set itself up by presenting prima-facia evidence that more than likely it used illegal considerations regarding her employment. It is a mistaken assumption that why another candidate was hired will counter-balance an illegal activity on the part of the manager. Because one person was not discriminated against is not an affirmative defense that the other person was not discriminated against. In this case we know the end result, $75000.00 bucks.

    Marie
    “Yes, it appears this candidate was treated differently because of a protected class by the one statement.”
    ________________________________________

    That is exactly the point. “Treated differently”; “protected class”; “one statement”. That one statement was severe enough to create the path from cause (she is pregnant and can’t handle the job) to action (she was not hired because she is pregnant and can’t handle the job. Those are the kinds of things that keep forums such as this full of topics to discuss because someone did not recognize the power behind their words that will cost them money.

  15. Tracy on Wed, 8th Apr 2009 12:55 pm

    16. Well said John.

  16. Jeanette Zimmerman on Wed, 8th Apr 2009 1:02 pm

    17. Brian is right. Here in the state of Washington presuming that a pregnant woman cannot perform a job is even more strictly prohibited than in Federal Statute. Absent a physicans statement to the contrary we must presume capability.

    It is not the employers job to make life decisions for or about out current or prospective employees. As I remember personally working up to the day that I gave birth (and lifting and carring moderately heavy things all that time) and being back to work in less than one week. I defy HR managers to make such decisions for me or any other pregnant woman.

  17. John on Wed, 8th Apr 2009 3:06 pm

    18. Jeanette is right.

    In 1991, the Supreme Court’s decision in Johnson Controls extended women’s right to work in hazardous jobs and restricted the employer’s right to make decisions about the welfare of the employee’s potential offspring. The Court ruled gender-specific “fetal protection policies” that bar fertile women from hazardous jobs are illegal. The determining factor in employment decisions must be the individual’s ability to perform the job, not her ability to become pregnant or the fact that she is pregnant, even if the job poses hazards to the developing fetus.

    Pregnacy must be treated the same as any other temporary disability that a male may have. We do not have a maternity or pregnacy policy. We have a Modified Duty policy. It is strictly related to employee safety, either themselves or other employees, and safety for the public. If a male breaks his leg and cannot don safety boots he is removed from duty, placed on FML or if there is viable Modified Duty that he can perform and is willing to accept it, then he is placed on that assignment. The same will be for a pregnant worker that can no longer wear her safety gear. The policy is directed at safety for the employee and not the fetus which is the intent of the court ruling.

  18. Mary on Mon, 13th Apr 2009 10:33 am

    19. How does the potential employee even get ahold of an “inside email” in the first place?
    Someone had to turn this over to her or was tit sent direct?

  19. John on Tue, 14th Apr 2009 3:07 pm

    20. Mary that is an interesting question. I suppose the lesson to be learned is that an inappropriate email should not have existed. It leads me to believe that this was common place and they did not feel a need to cover tracks. Either they knew it was an imporper conclusion and did not care at which point it cost them. Or they did not know and it cost them just the same.

    The point is that hiring decisions have to be made supporting employment law either out in full view of others or behind closed doors.