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Why do supervisors talk so much?

August 7th, 2014  |  Joy Waltemath

Supervisors tend to talk too much, as every employment lawyer can attest. Why is it necessary to comment on everything and everyone at work?

Recent federal court decisions seem to confirm this. In the space of the past month, supervisor comments alone helped several employees squeak past summary judgment, or even resurrected their claims on appeal. Often evidence of supervisory comments is used to show pretext. It’s a safe bet that in many of these cases, the supervisors had no conscious awareness that their comments could get their employers into trouble.

Consciousness-raising. Conscious awareness of what they are saying is what employment counsel and HR want to instill in their organization’s managerial personnel. Supervisors are thinking about getting the job done; they often aren’t thinking at all about what they are saying. Aside from a reminder to “think before you speak,” and your grandmother’s familiar adage that “if you can’t say anything nice, don’t say anything at all,” what can your organization do to remind supervisors that employees’ ears are always on high alert?

You can start by sharing some stories about the kinds of comments that got other supervisors into trouble. For example:

1. Race discrimination

Us vs. them. Revisiting an African-American operation manager’s race discrimination and retaliation claims, the Second  Circuit found pretext evidence in statements by his former supervisor that, with respect to the employee’s ability to discipline his African-American regional managers, “they don’t know how to police each other” and that the regional office “could lighten up a bit.” (Kirkland v Cablevision Systems). The manager was the only African-American area operations manager working for the employer; he had complained multiple times about being singled out for criticism, the last time just a month before he was fired.

You don’t fit in. Citing management comments that an African-American detective “did not fit in” with an elite group of troopers and a white officer would “fit in better” as sufficient to raise an inference of pretext as to the real reason why the Black detective wasn’t assigned to that specialized unit, the Second Circuit vacated summary judgment that had been granted to a public employer (Abrams v Department of Public Safety, State of Connecticut). The detective was rejected despite his supervisor’s recommendation; he was one of only three black detectives in his unit, and for five straight years, all eight detectives selected for assignment to the unit were white.

The veiled comments in the two cases above carried a racial undercurrent that revealed the speakers apparently had an “us vs. them” mentality, which was enough for the appeals court to let a jury consider whether discriminatory treatment occurred. Asking your own supervisors to discuss what they think the comments meant and whether they agree with the court can lead to increased awareness of their own attitudes and behaviors.

2. Sex discrimination

Prison riot. Meanwhile, the Seventh Circuit dismissed a prison counselor’s hostile environment claims based on the regular use of her desk for sex by the night shift – the court didn’t see that obviously offensive practice as related to her gender – but it did find a constant barrage of sexually charged comments directed towards her was egregious enough  to reverse summary judgment against her discrimination claims (Orton-Bell v State of Indiana). Her first superintendent harassed her, ogled her, and allegedly told her she couldn’t wear jeans because “her ass looked so good that it would cause a riot.” He got fired, but male employees continued to congregate to watch female employees receive pat-downs, making sexual comments all the while, like they needed a cigarette after watching her get patted down because it was almost like having sex.

Here the constant barrage of comments was worse in the court’s view than sex-on-a-desk. Would your managers agree? Most managers recognize that a continuing stream of harassing commentary is inappropriate. But comments don’t have to be constant to be actionable, as evidenced by the cases below:

Just one comment. Saying she “just didn’t like the idea of two men working together,” the words of a case manager who later became a male hospice nurse’s supervisor, and then terminated him, got her into trouble. This one comment was enough for a district court to deny summary judgment, finding a fact question as to pretext, even though there was ample evidence the employee had been counseled for tardiness, policy violations, and rudeness to coworkers (Lianoz v Hospice of Humboldt).

Or only one week of comments. Coworker comments like “women don’t belong working on cars,”  egregiously sexual comments, dirty jokes, and an assistant manager’s remark that “girls do not deserve to work [here] on cars,” even though occurring primarily during only one week, were found severe and pervasive enough by another court to establish a hostile work environment. Multiple incidents of both anti-female comments and sexually charged comments specifically directed at the employee created an inference, said the court, that her gender was the motivating factor for other gender-neutral instances of harassment; this gave the court permission to view gender-neutral instances as part of the hostile environment it (Schmidlin v Uncle Ed’s Oil Shops Inc). To be actionable, misconduct must be recurring, not prolonged. The fact that the employee worked with the worst offending coworker for only one week was irrelevant to the court in this case.

3. Age discrimination

Clearly the courts are very sensitive about sexual comments. But attitudes are changing about age-related comments as well. Moreover, talking about age seems to be really common. In most situations, supervisor comments aren’t the only evidence, but they can be the icing on the cake when it comes to convincing a court that there is evidence of pretext, for example:

Let’s (not) talk about age. In a classic example of an employee whose performance is not an issue until a new supervisor arrives, comments by the new supervisor about various employees like “she’s too old, she should probably just quit,” “she’s too old for that position,” and “I hope they’re not hiring an old lady again” about a recent job opening were sufficient to get to a jury on whether the given reason for the employee’s termination was pretext for age discrimination. Even though there was evidence the fired employee had made an inordinate number of job-related mistakes, the remarks here were made by a decisionmaker, they weren’t stray, and they were neither isolated nor ambiguous (Rittenhouse v Early Warning Services, LLC).

In another case, a supervisor’s age-related demeaning comments to such as “How old are you anyway?” “We’re not as young as we used to be,” “Aren’t you a baby boomer?” and “When are you going to retire anyway?” could plausibly interfere with a reasonable employee’s ability to focus and maintain composure at work. Thus, the employee’s allegations of age harassment were not isolated or trivial but rather demonstrated a pattern of discrimination against her based on her age sufficient to survive a motion to dismiss (Landucci v State Farm Insurance Co).

Especially when you’re demoting someone. Asking an employee about her age, plus comments by the company president that another, older employee needed to “slow down,” were enough that a jury could infer pretext for age discrimination in an employee’s demotion and termination. Rejecting defense arguments that pretext evidence was based only on stray remarks, the court found this too was a jury question. Even if the comments were “stray remarks,” they were made at the meeting during which the employee was demoted, which gave them more weight (Patricia Grenier v Key Floral, Inc).

Or say we don’t want to hire older people. Statements by a direct supervisor that his boss was concerned about getting in trouble for hiring the employee because the company owner did not want him to “hire older people” when offered as circumstantial evidence were not stray remarks. First, they reflected bias towards older workers generally and the employee particularly. Second, the owner’s comment was made by someone “in a position to influence” the employee’s direct supervisor, who was the decisionmaker. The owner’s denial merely confirmed the existence of a genuine issue of material fact. There was evidence of multiple age-related comments, including these, as well as the fact that, at 67, he was the oldest employee and that his job was taken over by someone younger (Suggs v Central Oil of Baton Rouge, LLC).

Or suggest “a more youthful approach.” A supervisor’s comments about a newly created VP position that he was going for “a more youthful approach” supported sending a 65-year-old teaching hospital employee’s nonpromotion claim for age discrimination to a jury. During the search to fill the VP position, for which the employee had applied, the headhunter’s notes referred to the employee as “mid 60’s to Retire.” Just before the hospital hired a 51-year-old candidate for the VP job, the operations manager allegedly said he was “looking for a more youthful approach” (Mullinix v Mount Sinai School of Medicine).

Most of these statements appear to reflect offhand remarks made without thinking. What you want to cultivate among your managers and supervisors, however, is a conscious awareness that words matter, and they are often carefully scrutinized – by employees, by their peers, by their own supervisors, and by the courts. What they say can – and will – be used against your organization.

If all this talk about supervisors talking is too much talking, check out this musical reminder to think before we speak:

Talk too much

(By Joe Jones and Reginald Hall)

You talk about people
That you don’t know
You talk about people
Wherever you go

You just talk
Talk too much