Restraining order leads to sexual discrimination lawsuit – so what should boss do?

by on June 27, 2011 · 0 Comment POSTED IN: HR Cafe
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Based on the facts presented in the scenario below, how do you think the court ruled on this employment law case?

“I had to get the restraining order,” employee Shona Gonzalez explained to supervisor Brian Meeks. “Billy punched me in the face and kicked me half a dozen times in the side. I’m lucky he didn’t break my ribs.”

“Well, I’m sorry you two broke up and had this fight over the weekend,” Brian said. “Billy has been a valued employee here for more than four years, and you do good work, too.”

“But this order causes problems,” Brian went on. “Billy isn’t allowed within 1,000 feet of you, so when you’re in this building, he can’t come in. Since we only run one shift, that basically means he can’t work here.”

In danger
“That’s unfortunate,” Shona said. “But what do you want me to do? I feel like I’m in danger when he’s around, and the judge agreed with me.”

“What I want you to do is find another way of dealing with this situation,” Brian said. “It’s not fair to Billy — or to the company, frankly — for him to suddenly be locked out of his employment.”

‘Handling Employee Complaints: What Every Manager Needs to Know’

Fearful for her safety
“And how about me?” Shona asked indignantly. “Should I have to feel unsafe because he’s here at the same time I am? You’re ignoring the fact that he threatened to beat me again.”

“There has to be a less drastic solution,” Brian said. “I hate to be so blunt, but if you don’t get this restraining order lifted, it’s either him or you. And Billy is more valuable to the company than you are.”

Instead of withdrawing the order, Shona saw a lawyer and sued for sex discrimination. Did she win?

The decision
Yes. Shona won a preliminary victory when the judge refused to dismiss her suit. This meant the company either had to argue the case in front of a jury — jurors are notoriously pro-employee — or settle out of court.

The company argued that it didn’t discriminate against Shona because the decision to retain Billy, instead of her, had a legitimate basis: He was more experienced and skilled.

But Shona said she could do all the tasks Billy was capable of. What was more, supervisor Brian could have accommodated both of them by creative scheduling. Although the company didn’t run a second shift, there were maintenance jobs Billy could have done when she wasn’t there.

The judge said the evidence suggested the company considered Shona’s employment less important than Billy’s because she was a woman.

Takeaway: If an employee makes you aware of a restraining order he or she has obtained against a domestic partner or other party, take it seriously. With the person’s permission, notify HR and other appropriate departments. Failure to do so can make your organization vulnerable not only to bias charges, but also to workers’ comp claims or OSHA violations.

Cite: Sereno-Morales v. Cascade Food Inc., No. 09-1157, D. Ore., 5/12/11.

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