Hostile Work Environment Definition
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Does Your Boss Harass You Like This?

One of the most frequently recurring patterns of conflict in the workplace is when a New Supervisor joins a department and ruins everything the senior employees liked about their jobs.

Company Executives often assign the New Supervisor the task of “clearing out the dead wood” or “cleaning house.” Excited to have his or her first supervisory job, the New Supervisor charges into the task of “cleaning house” with all the delicate subtlety of a pro wrestler.

Is the New Supervisor just doing their job, or buying into a company policy and practice of age discrimination toward older “dead wood” workers?

True Story: A New Supervisor at Best Buy bought into the task of clearing out 54 year old Jolyn McDonald, big time.

McDonald worked at Best Buy for 17 years before the New Supervisor, Ed Stald, arrived.

  1. The first thing he did was tell all the employees they now had a “clean slate”;
  2. The second thing Stald did during his initial meeting with the store management team was to brag that he could fire any employee “with documentation.”
  3. Third, Stald immediately put McDonald on a “Performance Improvement Plan.” Stald did this before he had even worked with McDonald.

After Stald did begin working in the store full time (for a period he split time between his previous Best Buy store and his newly assigned store where McDonald worked) Stald called McDonald “Grandma.” He did this in front of other employees and other members of the store management staff. He also referred to McDonald as “Grandma Jo” and “Grandma Jolyn”.

For McDonald, Stald was harassing her and turning her world upside down. She had 17 years of experience, had been promoted into the store’s management team as the “Customer Service Manager,” and had a history of strong performance appraisals.

None of that appeared to matter to Stald or the Best Buy brass.

Best Buy had begun a new “customer focused” operating plan that required Customer Service Managers, such as McDonald, to change many aspects of their jobs.  Best Buy claimed that “more tenured” employees had difficulty adjusting to the new system.

McDonald felt that “more tenured” was code for “older.” From her perspective, she had loyally served Best Buy for nearly two decades, but despite that the company decided that older workers couldn’t succeed in the new system.   And Best Buy decided this before even giving older workers a chance to show that they could perform in the new system just like they did in the previous one.

Feeling harassed by her boss, and believing the company was “building a case” to terminate her, McDonald left on vacation for a week to get away and decompress.

When McDonald returned from vacation she was demoted.  Stald told McDonald that while she was on vacation her staff had dealt poorly with some customer service issues.

Rather than accept her demotion, McDonald quit.  Then she filed an age discrimination lawsuit under the Age Discrimination in Employment Act (ADEA) against Best Buy.

Best Buy made a number of arguments in it’s defense. Maybe you have heard some of these arguments yourself?

Best Buy claimed that McDonald’s performance really had gotten worse, despite 17 years of great appraisals.

The court rejected this argument, saying that Best Buy wrote up McDonald for nebulous, unprovable things like “failure to manage labor.”

Best Buy claimed that its statements that the new company operating plan was difficult for “more tenured” employees did not mean “older” employees. Best Buy claimed that “more tenured only meant people who had been with the company many years, and that people under 40 could be with the company many years and also have a hard time with the changes.

The court rejected this argument too. The court said that because Best Buy never came forward with actual examples of employees under 40 years old who had been with the company for many years and who were having a difficult time adjusting to the new system, Best Buy’s argument was suspicious at best, because there was no denying that it was implementing “a business model that results in the demotion or termination of “more tenured” employees is an effective artifice to push older employees out the door.”

Best Buy actually argued that calling McDonald “Grandma” was not an age related comment. Best Buy claimed that since it’s possible for people under 40 to be grandparents, all the times Stald called McDonald “Grandma” or “Grandma Jo” should be disregarded by the court.

The court said that Best Buy’s argument “does not stand the test of logic.” The court continued to rip into Best Buy:Simply because a racial epithet could beused to refer to a person outside of a protected class does not mean that a racialepithet is not race related and is acceptable in the workplace. What matters is the commonly accepted meaning of the word. In this case, a woman who is labeled
Grandma” is unquestionably labeled with the moniker because of her age or personal characteristics popularly associated with persons of an older generation.

Conclusion: Multiple Bad Acts = Mosaic of Age Discrimination

In the end, the court said that no one piece of evidence was enough to get McDonald to a jury trial.  But, “when considered in combination, they present a mosaic that could convince a jury that Plaintiff’s termination was the product of a new corporate culture geared toward putting older employees out to pasture.”

Take Away Tips From The Undercover Lawyer:

  1. Courts Care About the Common Everyday Meanings of Words. If your company engages in corporate doublespeak like Best Buy, rest assured that in a court of law this type of talk won’t fly.
  2. A Decade of Positive Appraisals DOES MEAN SOMETHING. However much your employer may try to convince you that “that was then and this is now” courts are persuaded by a history of good reviews.
  3. Companies Should Not Push New Systems That Push Older Workers Out the Door.
  4. Courts Consider All the Facts Of A Hostile Workplace Together as a “Mosaic.” Usually, no single factor will determine the outcome either way. But the law will consider all of the facts together, and look at “the big picture.”

Does your employer stop short of blatantly discriminating against older employees, but does it engage in lots of discrete negative actions that — when taken together — push older employees out?  If so, here is a link to the full text of the case, so you can print it out and have ready to include in a letter to your own boss or company H.R. Dept:

(McDonald v. Best Buy Co., U.S. Dist. Court, CDIL, 8/28/08)

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    New supervisor at Best Buy created a hostile work environment based on age that constructively discharged Jolyn McDonald. Court considered mosaic of all facts….

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    Does Your Boss Harass You Like This? | UndercoverLawyer…

    New supervisor at Best Buy created a hostile work environment based on age that constructively discharged Jolyn McDonald. Court considered mosaic of all facts….

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    New supervisor at Best Buy created a hostile work environment based on age that constructively discharged Jolyn McDonald. Court considered mosaic of all facts….

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