Anticipation grew. Who would win and who would lose? The room was hushed. The envelope loomed large in the announcer's hand. "And the winner is ..."
This could be a scene from the Academy Awards. Or it could be a scene from any courtroom in the country, any day of the week. Actors who receive an Oscar are honored for their behavior on-screen. Employer-defendants who receive a jury verdict in favor of a plaintiff are also recognized—for their bad behavior in the workplace.
Here, in no particular order, are this year's nominees for the Awfuls—my Bad Boss Behavior of the Year Award.
First: American Apparel CEO Dov Charney, noted for his role in the lawsuit Mary Nelson v. American Apparel, Inc., et al. Mr. Charney often referred to women as “sluts.” He testified, however, that “some of us love sluts. ... It could be also an endearing term.” Mr. Charney is also nominated for posting a video on his company Web site showing him running around in his underwear in the workplace. The video was later removed from the site, but someone (here’s a surprise) saved a copy. Charney’s defense to the claims of sexual harassment? None of his conduct or speech was directed at the plaintiff because of her gender; he wore his underwear in the presence of employees to test “product fit,” and plaintiff was not treated any differently from male employees.
Next up is the judiciary's contribution in 2007: Judge W. Kennedy Boone of Washington County, Maryland, Circuit Court, who christened three African-American female public defenders appearing in his courtroom “The Supremes.” Judge Boone suggested the three women wear matching gold sequined miniskirts and “shake their groove thing.” Judge Boone encouraged the criminal defendant accused of assault and cocaine possession to get “an experienced male attorney.” Judge Boone has received one award already: He was reprimanded by the Maryland Commission on Judicial Disabilities.
Our next nominee is a group performance: Alarm One, a California alarm-sales company, and two supervisors. Most of the employees in the company’s Fresno office were 18 to 25 years old. Plaintiff Janet Orlando was 52. The supervisors held a meeting every morning before the field supervisors and the sales team left for a day of selling alarm systems door-to-door. The meetings had a pep rally atmosphere with yelling, chanting and cheering. Motivational techniques used at the morning meetings included passing out bonuses, singing in front of the group, pies in the face, eating baby food, wearing diapers and spanking with Alarm One and its competitor’s yard signs. Employees were spanked for arriving late or for losing a sales competition.
On January 14, 2004, Janet Orlando was spanked and sustained a cut and a bruise. She filled out an injury report and was taken to the doctor. Alarm One’s defense? Orlando was not injured; she never reported the injury; and she never sought medical care. The verdict was in Orlando’s favor, and the jury awarded her $500,000 in compensatory damages against the company and the two supervisors, plus $1 million in punitive damages. (An appeals court sent the case back to the trial court because of a judge's erroneous jury instruction, but defense costs continue.)
Former Kansas Attorney General Paul Morrison also gets a nod. In a year in which Kansas experienced floods, tornadoes and damaging winter storms, Morrison, a member of the American College of Trial Lawyers and once described as a “poster boy for a Kansas Democratic Party on a roll,” stands out for his role in the two-year-plus sexual relationship he had with Linda Carter, an administrator in the Johnson County District Attorney’s Office.
Morrison and the administrator had sex in the Johnson County Courthouse many times, including the day before he was sworn in as attorney general, as well as on business trips together across the country. At one point, Morrison bought Carter a ring, appraised at $16,000, and promised he would get a divorce and marry her. (After the pair’s relationship deteriorated, Carter’s husband found the ring and sold it for $4,750. And then deposited the money in his bank account.)
To prove his love, Morrison went to a shop in Kansas City and got a tattoo in the shape of a heart with the initials “LC.” Eventually, Carter filed a federal sexual harassment complaint against Morrison. Morrison resigned five days after a local newspaper broke the story, and he told the media he was trying to “get right with God.” He urged a state ethics board to investigate his conduct. They did. One award has already been given: to the Topeka Capital-Journal for its investigation and reporting of the story.
Our last nominee is Houston District Attorney Chuck Rosenthal, whose office has sent more people to death row than any other local agency in the country. There were allegations of racism in the District Attorney’s Office, and some defense attorneys and former prosecutors claimed black potential jurors were struck because they were seen as soft on crime. Black leaders believed that blacks were punished more harshly than whites.
Rosenthal was faced with a citation for contempt of court for deleting more than 2,500 e-mails that had been subpoenaed in connection with a federal civil rights lawsuit. But 800 e-mails and attachments preserved on Rosenthal’s office computer contained nudity, hard-core pornography and racist jokes and comments. Rosenthal refused to resign, saying “stupidity” was not grounds for quitting. But just this week, Rosenthal resigned as district attorney and said that prescription drugs may have impaired his judgment.
Award-ceremony custom calls for the speaking of the magic words, “And the winner is ...” But in these situations, there aren’t any winners.
When bad boss behavior occurs, it generally happens in an atmosphere in which the law is ignored, company policy is ignored, and the line separating good business practices from boorish conduct—and often unlawful conduct—is crossed. A dose of stupidity, mixed with a larger dose of arrogance, is the guaranteed formula for bad boss behavior. Litigation usually results.
And in a lawsuit, just like the Academy Awards, losers far outnumber winners. While sometimes it is necessary for a company to defend itself against plaintiffs’ attorneys and former and current employees hellbent on litigation, the fight is not without cost, even if an employer wins. There is anxiety, uncertainty, corporate downtime, a loss of employee morale and the risk of a judge or jury acting as “supervisor for a day,” and directing how a business should be run.
Following the law and following company policy will keep you out of a situation in which a “winner” needs to be announced. No envelope, please.