Hostile Work Environment -- 10 Things Bully Bosses do to Cause Lawsuits (Part I)
Introduction: Learn What Bully Bosses Are Told by Attorneys
On the website I promised that since I’m a defense lawyer by day, I would bring you the latest legal information “from behind the lines.” This topic is one of the seminars top employment lawyers provide for their biggest corporate clients. You, as an employee, can now learn what it is that the most expensive lawyers say to managers about what those managers should and should not do, in order to avoid getting sued.
Each of the following 10 points starts as a nugget of advice for a manager or a boss about what they should do to avoid being sued by employees. So for each point, not only can you see what your boss should be doing, but you can flip it around in your head and see how you can use the advice to your own advantage.
This Hub is Part 1, containing mistakes 1 through 5. Part II of the Hub contains mistakes 6-10 (which are some of the juiciest). So without further ado, here are “The 10 Biggest Mistakes Bully Bosses Make that Cause Companies to Get Sued”:
1. Sloppy Documentation
Most discrimination cases really are not won with some kind of smoking gun evidence that proves the entire case. A single e-mail , or an audio recording of manager yelling and swearing at an employee rarely carry the day for employees who file suit against their boss. Usually, discrimination cases are proven with circumstantial evidence. Although you may have heard someone on television dismissively say “That’s circumstantial evidence,” circumstantial evidence is still evidence. And it can be very powerful evidence. You can use it in court and you can win a case using only circumstantial evidence.
There's an old lawyers' example of supposing that you are walking through the woods and find a turtle on top of a tall stump. You don't have any direct evidence that somebody put the turtle on the stump, but you have pretty persuasive circumstantial evidence for it. All of this is to emphasize the importance of documenting the little things as they happen, because all the little things can be powerful circumstantial evidence of something much larger – like a company-wide decision to get rid of older employees.
One very successful employer-side attorney warned a group of manager that when employees sue employers, they often use documents, particularly e-mail, to show the jury that the manager was acting toward the employee with discriminatory intent. So, the attorney advised, “Always speak and write as if your comments will be held up to a jury some day.” This is something that I tell employers and managers all the time as part of my “day job” as employer-side attorney. “If you’re going to write something to an employee, imagine that it’s blown up to poster size, and then set on an easel in front of a jury.
So likewise, as an employee trying to protect yourself from a bully boss, you should also imagine what your written words will look like to a jury when when you are responding to your boss's e-mails. Make sure you use a calm, professional sounding tone. Imagine a jury reading your words and then deciding who is the good guy in this situation: is it you, or, is it the manager? Way too often people spout off and lose their temper in e-mails. It will only come back and bite them in the courtroom.
2. Not Following the Company's Own Policies and Procedures
Rules aren’t used only to hold you, the employee, accountable. You can often spin the company's own rules around and use those rules to hold your manager accountable. Also, employee manuals frequently promise more than what the law requires. As a result, you can hold your manager to the personnel policies your company has issued, even if your manager isn't aware of those polices. Courts expect managers to know what your organization’s policies and procedures are. If a manager tells you that the policy is “A” and it's actually “B”, then it will look like your manager is making up rules in order to get you in trouble.
Let's say, for instance, that your manager says you must call in by 7:00 am if you’re going to be late for work. But the policy actually states that employees must call in 30 minutes before their shift starts. If your shift starts at 8:00 am, then a jury is going to view your manager as being purposefully deceitful, not just forgetful. It can make your manager look like he’s out to get you, which he or she probably was. Your manager should review a policy, double check that he or she has it right, and check with HR before taking disciplinary action against you.
If you know, then, that your manager has taken disciplinary action against you that contradicts company policy, then make sure that you careully document what happened and get a copy of the rule your manager did not follow. You will have a nice piece of evidence.
3. Inflated Employee Appraisals
This happens all the time. A manager spends years avoiding a confrontation with an employee the manager believes is under-performing. Rather go through the uncomfortable situation of giving a long term co-worker a bad appraisal, the manager just gives the employee “4's” on a one to five scale -- with five being excellent.
The manager might give a few 5's, and even a few 3's, but that is as critical as the manager will be. Now let's say your manager has given you some “3's”. On a 1 to 5 scale, threes are “satisfactory.” When you’re in front of a jury, what does satisfactory mean? It means satisfactory. It means average or meets minimum acceptable levels. It doesn’t mean “needs improvement or will be fired.” On a 1 to 5 scale getting a 3 overall means you’re doing a good enough job.
If your manager consistently gave you “3's”, or satisfactory, and then claimed that you were terminated for poor performance or that you were in trouble for poor performance, then your manager was contradicting himself or herself. This will undermine your manager’s credibility. In front of a jury in court your own attorney can say, “Look, here are years and years of positive appraisals that this manager gave my client” [you]. “And sitting here today is the same manager saying that my client has a history of poor performance.” Your attorney probably won't bother drawing the conclusion for the jury, but allow them to draw if for themselves: the manager is now lying to try to justify getting rid of the employee.
If your personnel file is less than all “Excellent” status, don't worry. But do work hard to keep your overall review score at least at a level of “3” or Satisfactory or Average or whatever is the middle of the road score at your organization. In truth, this should be fairly easy to do with most (but not all) managers. Do it, and you will have another powerful piece of evidence that the “real reason” you are being disciplined or threatened with termination is NOT your job performance.
4. The “Higher Up” Managers Shrug-off Employee Complaints
If there’s anything that I hear over and over again it’s that an employee complained about a bully boss to a higher level manager, and the higher level manager just shrugs it off, taking no action whatsoever. Defense-side lawyers are trying hard to train managers not to do this, but they do it anyway.
So what does this mean for you as an employee? You should complain to your manager, your HR person, or your boss’ boss. However, expect them not to do much, if anything, about your problem. You should carefully document that you did make these complaints. Send the boss's boss an e-mail confirming that you had a conversation with them. Briefly summarize the key points and blind copy yourself to a personal e-mail address outside the company before you hit SEND.
This way you will have a copy of the e-mail that shows it was sent to your manager's boss with the date and the time. It will then be the company's burden to show (in court or in front of the EEOC) that it responded to you. Will they have? Probably not. Often a boss responds with comments like “I’m not a babysitter” or “boys will be boys” or “I want everyone here to act like adults.” They think that such a cursory response is enough, but it’s not. Their lack of responsiveness to good faith employee concerns is a big cause of employee lawsuits, and a big reason why employees win those suits later on down the road.
5. Managers Who Change Their Story
Another way that bully bosses cause and lose lawsuits is by changing their story. In an organization, sometimes the story of why an employee was terminated changes multiple times. When this happens, the company's credibility is shot.
At first your boss will claim that you are having performance problems, and that you face discipline or even termination because of these supposed problems. When, however, you address those performance problems your boss will change course, and say, “Oh well, there are the attendance problems you have been having lately.” Then you address those supposed problems. Then your boss (now probably with H.R. Involved) will say, “Well, we’re laying you off because your position is being eliminated.” Does it look like “layoff” is the real reason you've lost your job, after management proffered all these different reasons, and keeps changing its justifications?
No, it looks like the real reason was some discriminatory motivation, and your boss was determined to get rid of you no matter how thoroughly you shot down each performance issue your boss raised. That’s why your bully boss changed his or her story – because he or she was determined to get rid of you no matter what.
So although this can be horribly frustrating to you when it’s going on, take heart in knowing that courts frown upon companies that flip-flop on why an employee was let go. Defense lawyers and companies both know that story-swapping by bullying bosses just causes the company to lose lawsuits. That's why defense lawyers are out in the business world training bosses NOT to change their story around once they start disciplining an employee with an eye on termination.
If this happens to you, there's no denying that the short term battles with your boss will be agonizing and frustrating. You'll probably feel like you are caught in a cycle where you lose no matter what you do. But you will know that the bully boss is unintentionally giving you the upper hand in the long term. You are the one who is going to win the war.
Now be sure to click through to Part II of this Hub, where you can find Bully Boss Mistakes 6-10.
You Won't Believe Mistakes 6-10 in Part II!
More by this Author
Are you are working hard at getting a new job, sending out resumes, getting interviews, and being told you only have to pass a reference check, but then not getting the job? Multiple people have recently contacted me...
Learn what the most expensive lawyers say to managers about what those managers should and should not do, in order to avoid getting sued by employees. And you, as an employee, can use this info to your definite...
If a supervisor or bullying boss has turned your once likeable job into a series of humiliating and degrading confrontations, then DO NOT file a complaint with Human Resources for help. Human Resources is NOT your...