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Thursday, December 22, 2016

No Compassionate Deed Goes Unpunished


 By Thomas Eden

Myra Furcron worked for Mails Centers Plus, as an outsourced mailroom employee at Coca-Cola when she was transferred to work with a male employee who suffered from Asperger’s syndrome. The complications associated with the disorder led to many difficulties for him in the workplace. He often exhibited mannerisms that are generally considered awkward and inappropriate, including staring, brushing up against employees, and talking in people’s faces, according to the alleged facts in a court opinion. 

Furcron initially attempted to befriend the male co-worker, but he mistook her friendly demeanor for flirtation. During their short six days working together, Furcron claimed he frequently entered her work area in the mailroom and invaded her personal space, stared at her from afar, and attempted to look down her shirt and at her underwear when she bent over. However more unsettling was Furcron’s observation that he frequently (“on a daily basis”) exhibited a state of arousal while staring at her and would deliberately bump and rub himself up against her. Other workers observed Furcron crying because she had to work with this man.

Furcron did not initially complain to her managers, even though she claimed the co-worker’s actions made her uncomfortable and diminished her job performance, because she recognized that his Asperger’s might have affected his behavior. Later, Furcron did make her concerns known to the offending co-worker, but his behavior continued, and ultimately Furcron complained to her supervisor detailing the misconduct and presenting a photo from the neck down of the co-worker in an aroused state. The supervisor’s response was that “he meant no harm, and that his conduct should be tolerated because of his disability.” Furcron complained on subsequent occasions, but the supervisor refused to take action, claiming the co-worker “had friends in high places at Coca-Cola, and it was out of his hands.”

Furcron was eventually fired for allegedly showing the neck down arousal photo of the co-worker, without his permission, to others in the workplace and discussing it with a human resources representative for Coca-Cola Co., one of her employer’s largest clients.

The case eventually ended up at the 11th Circuit Court of Appeals last week on Furcron’s claims of sexual harassment and retaliation which had been tossed out of court by the federal district judge after two supporting declarations were discredited. One was from a female co-worker who supported with “me too” evidence. The Court affirmed dismissal of the retaliation claim but allowed the sex discrimination claim to go to a federal jury. 

Common Sense Counsel: It is well settled that hostile work environment harassment occurs when unwelcome comments or conduct based on sex unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment. Having a well written anti-harassment and professional conduct policy, annual company wide employee training on that policy, prompt and effective investigation of complaints and taking proper remedial action are all keys to a good HR risk reduction program. Also, allowing your compassionate heart for a disabled worker to cloud your good decisions on workplace misconduct will most likely come back to punish you! 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com