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Boorish Behavior Is Not Funny And Can Lead To Employer Liability

On Behalf of | Apr 14, 2021 | Employment Law

On March 22, 2021, the New Hampshire federal court in the case of Timothy Record v. Hannaford Bros. Co., LLC  denied Hannaford Bros. Co., LLC’s  request for a summary judgment of the claims of its former employee Timothy Record.   Record claimed he endured pervasive sexual harassment based upon gender, sex, and sexual orientation and that his work conditions were so intolerable that he was forced to resign.  The denial of the summary judgment means that the case may be resolved by a jury.  Hannaford operates a chain of supermarkets which Record worked for nearly 10 years and received multiple promotions.  Record is gay.  Shortly after Hannaford hired a new manager as his direct supervisor, Record’s new manager began making inappropriate comments about Record’s sexual orientation. There is really no question that the comments made as well as his certain actions by that manager were clearly boorish, wrongful acts.   Hannaford, upon learning of those acts, verbally informed the manager that they were inappropriate, but did not put any type of warning in his personnel file even though many were admitted and numerous.  In comparison, Record had one claim during his 10-years with Hannaford which was for physical contact with an employee that he denied, yet that claim was placed in his personnel file.  With the manager having not received a written warning, Record claims that the manager continued to be abrasive and unprofessional identifying specifics that if true, undeniably were inappropriate conduct by any employee, but certainly a manager.

Record decided to leave Hannaford to take a job with a competitor market, left that new job, and expressed his willing to return to Hannaford if he did not have to work for that manager, yet ultimately became employed by a third market all within the month of leaving Hannaford.  While it appears, therefore, that his damages are substantially low, he still has the federal and state claim for sexual harassment and wrongful discharge to be heard before a jury.  While warnings in a personnel file can be viewed by an employee as a serious impediment for their moving up the ranks and cause them to leave, those types of warnings can also force the employee to reflect on the inappropriate statements or conduct he engaged in that violated federal and state discrimination laws.   A verbal reprimand that is not documented can very well be taken less seriously by an employee than having a written warning or perhaps a coaching memo placed into his personnel file along with the verbal reprimand.

If an employee makes joking statements or acts out to embarrass a co-employee, it is incumbent upon senior management to educate that employee such boorish humor is not tolerated in the workplace and to document that reprimand.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].